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STEWARDSHIP AND RESPONSIBILITY: A Policy Framework for Private Housing in Scotland

CHAPTER TWO: QUALITY STANDARDS FOR PRIVATE HOUSING IN THE 21st CENTURY

INTRODUCTION

35. Standards are an integral part of the framework of action required to improve the quality of private sector housing. Well-defined, relevant standards help to shape policies, inform investment decisions, target intervention and monitor progress in improving housing quality.

36. To support these overall objectives, standards must be effective. Effective standards should possess a number of characteristics. They should allow clear distinctions to be drawn between acceptable and unacceptable quality. They should be measurable in a consistent manner across different house types, different locations and different assessors. They should address factors that impact on the comfort of occupants and the integrity of the house.

37. Standards should provide benchmarks that present challenges - yet are achievable and consistent with the policy objectives the standards aim to achieve. While standards do not set the policy and investment options, they should be effective in identifying and setting priorities for intervention.

38. In that context, the overall aim of this chapter is to set out our views on the future shape and coverage of three key housing standards:

• the Tolerable Standard
• the Scottish Housing Quality Standard
• the Repairing Standard for private landlords.

39. Each of these standards addresses a different purpose. The Tolerable Standard is a statutory standard. It applies to all tenures and defines the lowest acceptable standard of housing that anyone should be expected to occupy. It is often termed a "condemnatory standard", as it is the standard below which intervention by the State is considered necessary to ensure the house is brought up (at least) to the Tolerable Standard or is closed or is demolished. The proposed Scottish Housing Quality Standard will also apply across all tenures but sets a higher standard than the Tolerable Standard. Unlike the Tolerable Standard it is not intended as a statutory standard, nor is it linked to compulsory powers. It is essentially a strategic standard designed to help set policies and monitor progress in improving housing quality across Scotland. The Repairing Standard is a minimum statutory standard that places a duty on private landlords to let, and maintain during their let, properties in a habitable condition. It is a basic standard related to "fitness for human occupation" but it is the responsibility of the tenant to take action when the Standard is breached by the landlord's failure to meet his obligations.

40. The remainder of this chapter presents key background information on the standards and discusses the continuing relevance of current standards and how they can be modernised to more effectively reflect the housing quality problems of the 21st century rather than the largely historic problems of the last century.

BACKGROUND

The changing sector

41. Changes to existing standards and the development of new standards need to take account of the changes that have taken place across the private sector. Scotland has a very different housing market compared to that of the 1960s. The private sector as a whole is now much larger in both absolute and relative terms (now 70% as compared with 50% of the stock) and within the private sector, the private rented sector has declined in size. It is currently only about 7% of the stock whereas the owner-occupied sector has increased. Right To Buy purchases have also resulted in a wide range of "non-traditional" housing types built in the public sector, moving into owner-occupation. The result of these changes is that whereas in the late 1960s, houses assessed as "unfit" in the private sector were likely to be occupied by tenants, today, Below Tolerable Standard (BTS) houses are more likely to be in owner-occupation. There have also been changes in the nature of the private rented sector with a decline in unfurnished, regulated accommodation, a growth in furnished lettings, the expansion of the Buy to Let sub-sector and of off-campus private lettings in response to the large increase in the student population over the last 30 years.

42. The types of households in owner-occupation have also changed. Evidence to the Task Force in preparing its first report demonstrated that over a third of all the poorest households in Scotland are now owners, with many older people and single person households living in the sector. The types of households in the private rented sector have also evolved with the growth in student tenants and affluent younger households renting good quality properties, although the sector still caters for some of the most vulnerable members of society.

The Tolerable Standard

43. The Tolerable Standard was first introduced by the Housing (Scotland) Act 1969 following its recommendation by the Cullingworth Committee (1967). Other than the incorporation of the "standard amenities" by the Housing (Scotland) Act 2001 (the 2001 Act), it has remained largely unchanged since 1969. The Standard was a replacement for the previous concept of housing "unfit for human habitation" and was intended to be more objective. Owners of houses that are assessed as falling below the Tolerable Standard can, under the existing arrangements, be subject to various compulsory powers. The current criteria for measuring whether a house meets the Tolerable Standard are set out in Box 1 below:

Box 1: The current criteria for the Tolerable Standard

44. In the context of the housing conditions of the time, the Tolerable Standard allowed tight targeting of action against the very worst housing conditions in an environment where many homes were in extremely poor condition. In the changed conditions of the early 21st century it is important to ask if this Standard is still adequate.

The proposed Scottish Housing Quality Standard

45. The Cullingworth Committee also referred to the need for a "satisfactory standard", i.e. an aspirational standard that set a quality target for all houses towards which policy should be directed over the longer term. In recent years, there has been growing interest in standards of this type, particularly in relation to the social rented sector. For example, the Decency Standard has been launched in England with the objective that all public rented houses should meet this Standard within 10 years. The National Assembly for Wales has also launched a Welsh Housing Standard. In Scotland, in November 2002 the Minister for Social Justice announced the intention of developing a Scottish Social Housing Standard and the Scottish Executive plans to consult on the content of this Standard.

46. The first stage report of the Task Force also suggested that a cross-tenure "aspirational standard" should be developed to provide benchmarks against which action to promote and improve housing quality can be measured. It pointed out that the Scottish Executive consultation, in December 2000, on a proposed Index of Housing Quality had demonstrated strong support for developing a standard that could be used for this purpose. We have sought to develop this idea further taking account of the debate on the need for a housing standard for social housing in Scotland and research commissioned by Communities Scotland, at our request, to help clarify the issues surrounding the content and operation of the proposed standard (Adamson, 2003).

Private landlords' Repairing Standard

47. Statute and common law place a duty on private landlords to ensure tenants occupy accommodation that meets minimum standards of repair and habitability. The legislation setting out private landlords' repairing obligations is contained in Schedule 10 (as amended) of the Housing (Scotland) Act 1987. It is a consolidation of statute from the early 1960s. Schedule 10 creates an implied condition on all short leases (i.e. leases of less than 7 years) that landlords will provide and maintain their property in habitable condition and maintain the structure and exterior in repair. They must also keep in repair and working order, sanitary installations and installations for the supply of water, gas and electricity.

48. Until the introduction of the Housing (Scotland) Act 2001, this implied duty applied to all types of residential landlords but Schedule 4 of that Act modernised and, in certain ways, augmented the statutory repairing obligations of local authorities and Registered Social Landlords (RSLs) compared to their obligations under the 1987 Act. Schedule 4 applies only to local authorities and RSLs operating Scottish Secure Tenancies and Short Scottish Secure Tenancies. We have taken the view that a similar review and modernisation of Schedule 10 for private landlords is required.

UPDATING THE TOLERABLE STANDARD

Purpose and current relevance

49. The first report of the Task Force called for a reassessment of the Tolerable Standard:

'in order to address existing patterns of housing quality failure and, therefore, reflect 21st Century thinking on what should be a base line, condemnatory, standard which can be used in a consistent way throughout Scotland'.

50. The Tolerable Standard has several key features. It identifies those elements of a building's construction, including the provision of amenities that are fundamental to its functioning as a home. Each element is described in terms of a desired level of performance below which a building would, on that single element, be in a condition unsuitable for continued occupation. In other words, the Standard operates on a simple pass/fail basis. As noted earlier, failing the Standard condemns the house and as a consequence, provides a trigger for statutory action on the part of local authorities.

51. We acknowledge that housing conditions have improved dramatically since the Standard was introduced. Since the early 1970s, action by owners, local authorities and housing associations have largely (though not wholly) eradicated many of the key failings that the Tolerable Standard was designed to tackle, such as the lack of basic amenities and the provision of hot and cold water.

52. However, the Standard also addresses a range of failures that could arise in any property even those built to modern standards. Rising and penetrating dampness, structural instability, the failure of foul and surface drainage for example, or inadequacies in respect of heating, lighting and ventilation are all problems that could conceivably occur in any house as a result of lack of maintenance or as a result of factors such as subsidence.

53. If the public sector is to intervene in privately-owned housing, the basis for doing so should be rooted firmly in the public interest in ensuring appropriate standards of public health and safety. A condemnatory, pass/fail Tolerable Standard, properly targeting the highest priority and highest risk housing quality failures, remains an effective and transparent way of ensuring that intervention is sharply focused.

54. Also, we took the view that any standard that defines the worst conditions and identifies them as the highest priorities for action should be linked to effective mechanisms for ensuring that those conditions are addressed. Whereas in the past, a house that failed the Tolerable Standard usually required comprehensive rehabilitation or demolition, in the future there may be a need for more targeted action dealing with specific failures. In Chapter Five we have reviewed and made recommendations on the powers available to local authorities for tackling Below Tolerable Standard housing.

Updating the elements of the Tolerable Standard

55. We have taken account of views and suggestions made for changes to the Tolerable Standard including responses to the consultation prior to, and the subsequent debates, on the passage of the Housing (Scotland) Act 2001. We have examined the 10 elements of the Tolerable Standard and identified those that should be retained without the need for any change to their terms and those that we consider should be updated with guidance setting out a better specification of their threshold for passing or failing. We have also examined proposals for adding new elements to extend the Standard in specific ways.

Unchanged elements

56. We have noted above that there are a number of elements in the Standard, the failure of which can apply to any house, whether it be of old or recent construction, whether modernised or unmodernised and whether of traditional or non-traditional construction. We therefore recommend that the revision of the Tolerable Standard should retain the requirement for a house that meets the Standard to:

• be structurally stable
• have satisfactory provision for natural and artificial lighting, for ventilation and for heating
• have an effective system for the drainage and disposal of foul and surface water
• have satisfactory facilities for the cooking of food within the house
• have satisfactory access to all external doors and outbuildings.

57. We also noted that while houses that lack basic amenities have largely been dealt with, this is not universally the case. Therefore, for the foreseeable future, there is a need to retain the requirement that to meet the Tolerable Standard, a house must:

• have a sink provided with a satisfactory supply of both hot and cold water within the house
• have a water closet available for the exclusive use of the occupants of the house and suitably located within the house
• have a fixed bath or shower and a wash-hand basin, each provided with a satisfactory supply of both hot and cold water suitably located within the house.

Unchanged elements with improved specification

Rising and penetrating dampness

58. The test contained in the present Standard, that a property should be substantially free from rising and penetrating dampness has been interpreted in different ways. We believe that the existing wording of this element of the Standard is satisfactory but that the interpretation applied to it should be formalised through guidance and should reflect modern expectations in respect of the presence of dampness. So far as rising damp is concerned, we believe that a house should be, so far as is practicable, free from rising dampness. In respect of penetrating dampness, the guidance should ensure that any occurrence likely to materially impact on the comfort or health of occupants or that could result in further physical damage to the property should be grounds for failure.

Wholesome water supply

59. The Tolerable Standard includes a requirement that a house should have an adequate piped supply of wholesome water. In practice the interpretation of this element has focused on the quality of private water supplies in rural areas. The Standard has not generally been used to address the presence of lead in drinking water, for example, and in this context approaches to the definition of "wholesome" have been inconsistent.

60. The Water Supply (Water Quality) (Scotland) Regulations 1990 (and the revised 2001 regulations due to come into force at the end of 2003) provide a clear and authoritative definition of "wholesome". These regulations set detailed standards for water quality and in particular make specific provision in respect of lead content. However, these regulations apply to the quality of water from it leaving the public supply system at the point it enters the curtilage of a house rather than as it arrives at the tap for use by the occupants.

61. The health risks arising from lead in the water supply are sufficient to justify the view that a house should fail the Standard where the water supply contains lead in excess of the limits set for the public water supply system. Guidance should be developed to support this, linking the definition of "wholesome" to the water quality regulations in force for the public supply system.

Options for extending the Tolerable Standard

Thermal efficiency

62. One of the major changes in expectations in respect of the performance of a house over the past thirty years has been in the respect of thermal efficiency. It is now generally agreed that some basic thermal insulation is essential to the functioning of a building as a home. Given this it is clearly appropriate that the Tolerable Standard should require a minimum level of performance.

63. There are, however, considerable practical problems in how this should be specified and how performance is measured. Three broad approaches are available:

• an overall house energy cost measure: to establish, within the Standard, a specific level of overall energy efficiency performance for the house as a whole by reference to one of the established technical measures such as the National Home Energy Rating (NHER) or Standard Assessment Procedure (SAP)
• a building material heat transmission measurement: to specify a minimum level of thermal efficiency for specified elements based on their "U values". That is the rate at which heat is transmitted through the material. The specific elements would include roofs, ceilings (in flats), floor, external walls, windows and doors
• a qualified thermal insulation standard: to use a qualified or descriptive performance standard and provide detailed guidance on its interpretation. For example, that a property should be "reasonably" energy efficient or "insulated to a basic standard" or be "capable of being heated to an acceptable temperature at a reasonable cost".

64. Having considered the practical implications of each of the options, our conclusion is that a flexible and practical approach is needed and this is best achieved through the inclusion of a qualified statement to the effect that a house should provide "a basic level of thermal insulation".

65. The interpretation of this measure should be addressed in detailed guidance and further thought should be given to this, since the precise measure used can have a significant impact on the numbers failing the Standard and as a result, the capacity of the Standard to target the very worst properties.

66. The guidance will need to identify the precise steps that local authorities should take to identify houses that fall below the Standard on this new element. Guidance should also assist in indicating the types of remedial measures that could be used and in developing technical solutions for those building types that are most difficult to improve.

Condensation and mould growth

67. The occurrence of both mould and condensation is a problem in many Scottish homes. The causes of the problem in any particular house or at any specific location within a house will vary from case to case. Nevertheless, condensation and mould growth are symptoms of deficiencies in the heating, ventilation or insulation of the property. We have made recommendations in relation to thermal efficiency and the Tolerable Standard already includes a requirement for satisfactory provision for heating and ventilation. On this basis we have taken the view that including condensation and mould growth would not add to the effectiveness of the Standard and would be inappropriate. However, the presence of moderate or severe condensation should be taken as an indicator of a potential failure in relation to insulation, heating and ventilation and guidance should reflect this.

Electrical wiring

68. There is no reference to electrical wiring or insulation in the existing Tolerable Standard. But it is clear that any substantial deficiency could impact adversely on the safety of occupants and the habitability of the house. We therefore, recommend that a new element should be included in the Tolerable Standard to the effect that the installations for the supply, distribution and use of electrical power should be adequate and safe in use. The definition of "adequate" and "safe in use" should be dealt with in guidance.

Radon gas

69. The presence of high radon gas emissions represents a significant risk to the long-term health of occupants. Whilst it is only likely to occur in certain areas of the country (the gas is associated with particular geological features) where it does occur it represents a real threat to the health of the occupants.

70. Where radon gas is a problem, this results from the failure of the ventilation of the building to prevent concentrations of the gas from building up. Therefore, we consider that unsatisfactory levels of radon gas should be taken as one symptom of inadequate ventilation and assessed as below standard on this basis. This should be made clear in guidance.

Serious disrepair

71. Arguments have been put that "serious disrepair" should in itself be a reason for classifying a house as Below Tolerable Standard. Although serious repair defects need to be tackled, they arise primarily from a lack of maintenance rather than basic flaws in the property itself.

72. Properties in serious disrepair may be unfit for occupation but this will be a result of more specific failures such as dampness, structural instability or inadequate services. These problems are addressed separately within the Standard. On this basis, our view is that including "serious disrepair" within the Standard would introduce further significant definitional problems without adding to the range of problems the Standard is intended to address.

Guidance on the Tolerable Standard

73. The Task Force's first report recognised that the scope for variation in the interpretation of the Tolerable Standard had created problems in producing accurate estimates of the number of homes that fall below it. Variations in interpretation across, and sometimes within, local authorities will also weaken the effectiveness of the Standard in setting a minimum level of acceptability that is consistent across Scotland. We therefore recommend that the Scottish Executive should ensure that detailed and authoritative guidance is prepared in consultation with representatives of local authorities and other relevant housing and professional interests. The guidance should cover all aspects of the interpretation and operation of the Standard and its elements. It should be closely linked to the Scottish House Condition Survey and advice on local house condition surveys so that these tools can be used to produce agreed estimates of houses failing the Standard.

74. In addition, whilst it is difficult to be precise about the impact of the changes we propose, and this is discussed in more detail below, it is likely that any extension of the Standard will disproportionately impact on minority ethnic households and older home owners and private tenants. The needs of these groups should be specifically addressed in any guidance relating to enforcing the revised Standard.

Estimated impact of proposed changes

75. At our request, Communities Scotland has re-analysed the results of the 1996 Scottish House Condition Survey to provide an estimate of the likely impact of the proposed changes on the number of houses falling below the Tolerable Standard. Some 21,000 houses were estimated to fall below the Tolerable Standard as it was defined in 1996. Estimates by Communities Scotland for each of the proposed new elements in the revised Standard are set out in Table One below. We have used the NHER measure as a surrogate measure for the basic thermal insulation standard. The adoption of levels 0, 1 and 2 is designed to give an indication of the number of houses that would fail the Tolerable Standard due to inadequate insulation if those three levels were used.

Table One: Total numbers of dwellings failing the proposed improved and new elements for the Tolerable Standard

Based on 1996 Scottish House Condition Survey

76. The numbers in each column cannot simply be summed to give overall totals because of potential duplication, i.e. houses could fail on more than one of these elements but could only fail the Tolerable Standard once. However, even allowing for this, on the basis of these figures, it is likely that the number of houses failing the Tolerable Standard will rise significantly as a result of the changes we propose.

77. It is not possible, at this stage, to be precise about what the actual number may be because:

• as noted above, there will be a degree of overlap as some houses will fail on more than item. Additionally some houses will already be classified as below the Tolerable Standard for other reasons
• the biggest increase results from the inclusion of houses with poor thermal insulation but this is only measurable from the 1996 Scottish House Condition Survey using NHER scores and as we have already noted NHER can only be regarded as a proxy for poor thermal insulation. Whilst many of the homes with low NHER ratings will have very poor thermal insulation by no means all of them will necessarily fall below the Tolerable Standard
• the Warm Deal and Central Heating programmes and other measures to tackle fuel poverty may have had a significant impact on these figures over the past six years together with improvements to remove lead pipes and other remedial works
• the full impact of our proposed changes will not be known until the results of the 2002 Scottish House Condition Survey are available. At that point a more detailed assessment of the impact of the changes, including the implications for minority ethnic households and other disadvantaged groups, should be undertaken.

SCOTTISH HOUSING QUALITY STANDARD

Purpose of the Standard

78. When announcing the intention to develop a new Scottish Standard for Social Housing, the Minister for Social Justice made it clear that this should be linked to our work on housing standards. We welcome this and we recommend that the term Index of Housing Quality should be dropped and replaced by Scottish Housing Quality Standard.

79. To ensure that this framework of standards is properly linked and operates in a consistent way, we also recommend that the proposed Scottish Standard for Social Housing should be that part of the Scottish Housing Quality Standard that is applied to the social housing sector.

80. We envisage that the Scottish Housing Quality Standard should have a number of functions:

• first and foremost, it should be capable of being used to assess and compare the condition of the housing stock in different parts of Scotland and occupied by different types of households and by households in different tenures, i.e. it would be a strategic, cross-tenure measure of housing quality
• secondly, in the social rented sector, the measure should be capable of being used to specify a Social Housing Standard linked to a target date or dates for the achievement of this Standard
• thirdly, in the private sector we consider that the measure should be used by the Scottish Executive and local authorities to help define objectives for intervention. These objectives will not necessarily be hard and fast targets to be achieved by the specified date since, as we have indicated on a number of occasions, the primary responsibility for the condition of private sector housing must lie with the owners concerned. But the Scottish Housing Quality Standard should be capable of being used to provide benchmarks against which progress can be measured and in some cases the Standard will provide clear targets which might be linked to specific programmes or initiatives, for example the Fuel Poverty Strategy.

81. It follows from this and our conclusions on the Tolerable Standard that we do not think that the Scottish Housing Quality Standard should be linked to the use of compulsory powers for closure, demolition or improvement or as the basis for a standard which houses in receipt of grant or loan assistance (see Chapter Five) would be expected to achieve. We would, however, expect local authorities to have powers to provide grant or loan assistance to help rectify defects identified through the Standard where this is consistent with their wider housing strategies and objectives.

82. We do not envisage, therefore, in the private sector, that the Scottish Housing Quality Standard would be used to develop a summary pass/fail test which could be applied to any particular property. For each relevant part of the Quality Standard it should be possible to assess the percentage of houses which fall above or below the specified thresholds and the extent to which any particular part of the stock (by area or household type for example) meets the overall Standard. Our consultants (Adamson, 2003) have also suggested that it would be possible to develop a points system to give overall scores as a measure of relative quality across the stock.

Content of the Standard

83. In developing our views on the contents of the Standard we have taken account of the results of the research commissioned by Communities Scotland (Adamson, 2003)). Whilst that research has provided guidance on how such a standard could be structured and operated, we do not believe that it is appropriate, at this stage to attempt to define the Standard in detail. That should be done in consultation with local authorities, the Chartered Institute of Housing (CIH), RICS and others with an interest and expertise in this area and this applies, in particular, to the proposed Scottish Social Housing Standard.

84. However, to provide an initial indication of the scope of the Standard we are of the view that it should measure the extent to which the stock as a whole:

• is free from serious disrepair
• is energy efficient-based on a whole house assessment of energy efficiency
• has adequate kitchen and bathroom facilities in terms of condition, space and layout
• provides a reasonable level of security
• provides a reasonable level of fire safety including smoke and carbon monoxide detectors
• does not contain any other risk to the health and safety of occupants either within the dwelling or any common parts
• provides effective sound insulation within and between dwellings
• is adapted, or is capable of being adapted, to meet the needs of the residents.

85. Taking these elements as a starting point, the consultants have proposed that the Standard should be structured around five criteria as follows:

Compliant with Tolerable Standard

86. Current performance against the Tolerable Standard is a simple and nominal pass/fail measure and this approach is recommended for retention within the Housing Quality Standard.

Free from serious disrepair

87. The consultants suggested that disrepair should be considered in relation to specified "primary" building elements such as the wall structure (internal and external); internal floor structure; the foundations; and, the roof structure and "key" building elements including:

• roof coverings
• chimney heads, including bridges
• flashings and skews
• rainwater goods
• external wall finishes
• access decks/balustrades
• damp-proof course
• windows/doors
• common windows/rooflights

88. A building would be in a condition of serious disrepair where any primary element or any two key elements required more than 20% repair or replacement.

Energy efficient

89. Energy efficiency, as opposed to thermal efficiency proposed in the Tolerable Standard, is suggested as a necessary component of any Housing Quality Standard. The consultants suggest that to meet the Standard, dwellings should have cavity insulation (where this is appropriate), loft insulation to 200mm (again where appropriate) and should also achieve an NHER score of 5 or better.

90. They are also of the view that the provision of a working whole house heating system should form part of the Standard. This is, however, recommended for inclusion under the heading Healthy, safe and secure below.

Provided with modern facilities and services

91. It is suggested that these should be defined as follows:

• kitchen fittings in a good and usable condition
• kitchens that provide adequate space and safe working layout
• bathroom amenities in a good and usable condition
• in three-bedroom houses or larger, a second adequately-located water closet.

92. Definitions of condition, space standards and storage provision have been developed through the Scottish House Condition Survey and should be used to form the basis of further consultation on this element.

Healthy, safe and secure

93. As an initial specification of this element the consultants suggest the following:

• full house central heating system
• suitably located, mains powered, linked smoke alarm on each floor
• secure window locks
• secure front and rear access doors
• emergency lighting provided in common areas
• door entry systems to all enclosed common areas
• secure rear access door to enclosed common areas.

94. Having considered this slightly more extensive list set out above, the consultants came to the view that:

• it would not be appropriate to include in the Standard, the extent to which houses are adapted to meet particular or special needs, on the grounds that they relate to changing usage of the stock
• the Standard should not include noise or noise attenuation because the causes of noise nuisance are not entirely related to the building itself and there is difficulty in accurately and objectively measuring noise nuisance
• environmental quality and environmental management should be excluded from the Standard because they often relate to social and community problems rather than problems with the housing itself and because the definition and measurement of environmental deficiency is difficult, if not impossible, given the possible influences involved.

95. Notwithstanding these recommendations, we received a number of representations relating to the treatment of access and accessibility in the Standard and we consider that the question of suitability of the housing stock to meet the particular needs of those with disabilities will require further consideration. We recognise that it would not necessarily be appropriate to make overall judgements on the quality of the stock based on the extent to which it meets any particular standard for accessibility. Many houses, upper floor flats for example, will never be capable of meeting this standard yet will provide perfectly acceptable accommodation for most households.

96. It is important, nevertheless, that the Standard should be capable of being used as a strategic planning tool to assess the potential of the stock to meet the requirements of those with particular needs. To achieve this we believe that the best approach will be for the Standard to assess the extent to which any individual house meets barrier-free standards (and on an area basis the number of such houses overall) and should measure the presence of features that could render it suitable to be adapted to particular needs.

97. Such features could include the presence of a ground floor WC or bathroom, the extent to which the access to the main door is level, or in the case of upper floor flats, the presence of a suitable lift, or the capacity of the bathroom, WC and kitchen to provide space for a wheelchair for example. How this approach could be developed should be subject to further consideration. The objective should be to ensure that the Scottish Housing Quality Standard is capable of providing meaningful information on individual houses and the stock as a whole on the extent to which it is capable of meeting the needs of those with disabilities.

98. The consultants have produced valuable work in setting out the options and some of the detail required but considerable further work will be needed to develop the proposed contents of the Standard and the necessary definitions and benchmarks. The research commissioned by Communities Scotland and published as a supporting document with this provides an outline of the proposed Standard. We believe that this should form the basis for further consultation by the Scottish Executive. In particular we would want to see further detailed attention given to the practical issues associated with defining the specific elements, to assess the suitability of the stock to meet the particular needs of those with disabilities.

THE REPAIRING STANDARD FOR PRIVATE LANDLORDS

Purpose and scope of the standard

99. We have noted in paragraph 48 that the statutory repairing obligation of social housing landlords has been modernised by the implementation of Schedule 4 of the Housing (Scotland) Act 2001. In our aim of achieving a similar modernisation of the statutory repairing obligation of private landlords (Schedule 10 of the Housing (Scotland) Act 1987) we have addressed four main issues:

• the Repairing Standard that landlords are obliged to meet
• the implied nature of the statutory obligations on landlords
• the range of tenancies and contracts encompassed by a new schedule
• publicity.

The content of the modernised repairing standard

100. We considered whether private landlords should simply be placed under a duty to meet the repairing standard in Schedule 4 of the Housing (Scotland) Act 2001 or whether we needed to reflect the particular characteristics of the private rented sector by adopting certain features of Schedule 4 but incorporating elements of the existing Schedule 10 of the Housing (Scotland) Act 1987. As there is much greater diversity in the types of landlords and letting arrangements in the private rented sector, we have decided to adopt parts of Schedule 4 but retain and further develop key parts of Schedule 10.

101. The substantive improvement of Schedule 4 over Schedule 10 is a new obligation on social landlords to carry out a repair inspection prior to a tenancy's commencement and notify the tenant of any work required (paragraph 2 of Schedule 4) and to carry out the repair work in a reasonable time (paragraph 3). We consider this to be an equally important responsibility that private landlords should meet as well.

102. We have agreed that the following paragraphs of Schedule 4 should also be adopted:

• paragraph 4: giving 24-hour advance notice in writing of a requirement for entry
• paragraph 5: linking building standards and fitness for human habitation
• paragraph 6: interpretation of "sanitary defects".

103. The core paragraph of Schedule 4 is paragraph 1. It requires a social landlord to ensure at the start of a tenancy and throughout the tenancy that the property is 'wind and water tight and in all other respects, fit for human habitation'. This can be adopted for private landlords with the addition from Schedule 10 of the landlord's duties 'to keep in repair the structure and exterior of the house' and 'keep in repair and working order the installations for the supply of water, gas, electricity and sanitation (including sinks baths and sanitary conveniences)' and 'the installations for space heating and heating water'. The duty should apply to installations that are necessary for the property to be habitable and tenantable.

104. Schedule 10 of the 1987 Act excludes a responsibility for the landlord to keep in repair and working order the 'fixtures, fittings, and appliances for making use of the supply of water, gas or electricity'. There seems no over-riding reason why the fixtures, fittings, and appliances for making use of the supply of water, gas or electricity should be excluded where they are part of the terms of the let. These items should now be included in the modernised Standard.

105. Furnishings and floor coverings that are part of the contract of let should "be fit for purpose", i.e. they should be capable of serving the purpose for which they were designed and supplied by the landlord. We propose that the Repairing Standard should include a responsibility for landlords to ensure that furnishings and floor coverings provided in the terms of let, are fit for their purpose and able to be safely used by the tenant (complaints about furnishings or floor coverings not being of high enough quality, or being unfashionable or dated would be excluded).

106. A summary of the key elements of our proposed modernised Repairing Standard for private landlords is shown in Box Two below.

Box Two: Key elements of the modernised Repairing Standard obligation of private landlords

107. When the modernised Schedule 10 is enacted it will supersede Schedule 10 of the 1987 Act for contracts in the private rented sector.

Making the implied nature of the Standard explicit and incorporated in written leases

108. Schedule 10 is implied which means that it has force even if it is not referred to in the lease. It also applies where a tenant has no written lease. Tenants with Assured and Short Assured Tenancies must be given written leases but there is currently no duty to incorporate a statement of the repairing obligations. We have concluded that tenants will be better able to exercise their rights if the repairing obligations are made explicit in written leases. Such a move would also reinforce in landlords' minds their responsibilities. As not all types of tenancies require a written lease to be provided, the implied nature of the obligations should continue to apply in such cases.

109. The repairing obligations must be expressed in a lease in an informative, comprehensible manner and language. We believe that a plain English approach should be adopted with all the essential features of the obligations set out in the lease. This is the style adopted for the model Scottish Secure Tenancy Agreement.

The types of tenancies that the modernised Repairing Standard should cover

110. A modernised schedule has to be expressed in terms of the types of tenancies to which it applies. It cannot simply refer to "private landlords". The simplest solution is to make a private landlord's repairing obligations apply to all tenancies that are not Scottish Secure Tenancies or Scottish Short Secure Tenancies. We want to ensure the exact phrasing of the terms of the coverage includes tied tenancies in the private sector.

Publicity

111. Our proposals for a modernised repairing obligation for private landlords retain the best of the current obligation of Schedule 10 and augment it to better reflect the expectations and values of a modern society and the particular characteristics of the private rented sector. The factors we have addressed reflect not only how a good repair standard can be achieved and maintained but also the importance of the safety of tenants. Safety is an implicit obligation in the new Standard and it is a theme we would wish to see emphasised in the promotion of the Standard when it is introduced.

112. This brings us to our final point about publicity. Tenants and landlords need to know about the repairing obligations and what they should expect in their leases and the implications the changes have for their rights. A significant publicity effort should be mounted by the Executive, local authorities, citizen's advice bureaux and voluntary organisations to get over to landlords and tenants the details of the changes (this should include clear statements about the responsibilities tenants have, as well as their rights).

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