On this page:

Maintaining Houses-Preserving Homes - A Report on Responses to the Consultation

« Previous | Contents | Next »

Listen

MAINTAINING HOUSES - PRESERVING HOMES: A REPORT ON RESPONSES TO THE CONSULTATION

CHAPTER SEVEN IMPROVING STANDARDS IN THE PRIVATELY RENTED SECTOR

7.1 The HITF recommended a number of measures to improve both the physical condition and management of the privately rented sector. These included:

  • The development of voluntary accreditation schemes for private landlords at the local level
  • Changes to the statutory repairing standard for private landlords with new powers for tenants to enforce this through a proposed Private Rented Housing Tribunal for Scotland
  • New powers to provide for the licensing of houses in multiple occupations (HMOs)
  • Discretionary powers for local authorities to regulate the privately rented sector more generally for all or part of their area if they consider that there is a need

7.2 The consultation paper notes that the proposal to develop a voluntary accreditation scheme for private landlords is already being taken forward and does not require new legislation. It also notes that the proposal to give discretionary powers to regulate the private rented sector has, in effect, been overtaken by the provision in the Antisocial Behaviour (Scotland) Act for a mandatory national registration scheme that will be administered by local authorities. As well as consulting on the other recommendations of the HITF the consultation paper also sought views on whether this registration scheme should be strengthened.

The Repairing Standard

7.3 The Repairing Standard is a minimum statutory standard of habitable condition and maintenance that a private landlord has to meet when first letting a property and during the period of the lease. The consultation paper suggested that a number of elements in the statutory repairing standard for local authorities and registered social landlords contained in Schedule 4 of the Housing (Scotland) Act 2001 should also apply to private landlords. These elements were as follows:

  • Landlords must carry out a repair inspection before a tenancy begins and notify the tenant of the work required
  • Landlords must carry out any such repairs in a reasonable time
  • Landlords must give 24 hours' advance notice in writing of a requirement for entry
  • In looking at disrepair or sanitary defects landlords should consider whether the property falls short of building regulations provision in the area, linking building standards and fitness for human habitation
  • The interpretation of "sanitary defects" should include lack of air space or ventilation, lack of lighting, dampness, absence of adequate or readily accessible water supply, among other factors.

7.4 The consultation paper proposed that the new private landlords' repairing obligations should apply to all tenancies that are not Scottish secure tenancies or short Scottish secure tenancies. The repairing obligation would apply even if there was no rent payable or the rent was below market value.

7.5 The consultation paper also sought views on the HITF recommendation that private landlords' repairing obligations should be made explicit in written leases and that tenants should be able to refer landlords who fail to meet the standards to the new Private Rented Housing Tribunal for Scotland.

Consultation Questions:

  • Are there any other elements that you would include in the modernised Repairing Standard for private landlords?(Paragraphs 102-105)
  • Do you agree with the proposed range of tenancies to which the new standard would apply?(Paragraph 108)
  • Should there be a statutory requirement that all written leases should include an explicit statement of the private landlords' repairing obligation?(Paragraph 107)

7.6 The majority of those who responded to this section of the consultation paper agreed with the elements proposed for inclusion in the new modernised Repairing Standard for private landlords. However, a substantial minority of respondents suggested additional elements to be included in the new standard. The most commonly mentioned aspects included health and safety requirements, energy saving and noise insulation, external areas and internal decoration.

7.7 The RICS Scotland suggested that further consideration should be given to including smoke detection and access in the modernised Repairing Standard. COSLA suggested that the Housing Quality standard should apply to all housing tenures and that the standards should reflect the requirements of the Scottish Secure Tenancy provisions in the Housing (Scotland) Act 1987, as amended by the Housing (Scotland) Act 2001. It also suggested that the standards should make provision for certificates and documentation relating to gas and electrical safety and fire detection and prevention equipment. Glasgow City Council supported this proposal and proposed that these requirements should be included in the new standard even if there are overlapping legal provisions.

7.8 The Private Rented Housing Forum (PRHF) stated that it agrees with the proposed list of elements to be included in the modernised repairing standard, however, it also argues strongly that the proposed new standard should apply to all tenancies and not just the private rented sector. The PRHF also states that it is happy to support the inclusion of an explicit statement of the private landlords' repairing obligation in all written leases. However, it argues that if this provision is accepted then it feels that it would be an unnecessary burden to also require that a repair inspection is carried out before each new tenancy begins.

7.9 Some respondents expressed a note of caution about making the list of items to be included in the modernised Repairing standard too comprehensive. The CML Scotland, for example, argued that:

"There is a balance to be struck between raising standards and possibly reducing the supply of houses available for rent...if other elements were added to the modernised Repairing Standard for private landlords, other than those detailed in the consultation paper, there is a risk that supply of houses to rent may reduce"

7.10 The vast majority (87%) of respondents who responded to this element of the consultation agreed with the proposed range of tenancies to which the new standard would apply. Similarly, the vast majority of respondents (92% of those that responded to the question) agreed that the there should be a statutory requirement that all written leases should contain an explicit statement of the private landlords' repairing obligation.

7.11 The City of Edinburgh Council noted in its submission that as households living in the private rented sector are predominately young and mobile, universities and employers are a major source of information to people living in the sector and they should be fully engaged in any publicity campaign about the new Repairing Standard. It also suggested that the Scottish Executive should produce a standard leaflet on landlords' repairing obligations and landlords should be obliged to provide new tenants with a copy of this leaflet.

7.12 The CIH argued in its submission that it would like to see a duty placed on private landlords to inform tenants of how they can enforce the repairing standard and where they can get advice and information, including information about how to contact the proposed new Private Rented Housing Tribunal.

The Private Rented Housing Tribunal

7.13 The HITF recognised that where private landlords do not adhere to their statutory obligations their tenants have limited opportunities for redress. The Task Force recommended that Rent Assessment Committees (RACs) should have their role developed, in order to establish an easily accessible agency where tenants with genuine complaints about repair obligations could seek redress. The consultation paper accepted this proposal and suggested that the Rent Assessment Panel (from which RACs are drawn) should have wider powers and be renamed the Private Rented Housing Tribunal for Scotland.

Consultation Questions

  • What changes do you think would need to be made to the Rent Assessment Panel and Committees to equip them for their extended role?( Paragraphs 109 - 117)
  • The name "Private Rented Housing Tribunal for Scotland" is a working title. Do you have any suggestions for another name for the service?(Paragraph 110)

7.14 The proposal to establish a new Private Rented Housing Tribunal was welcomed by a wide range of respondents including those that represent private landlords. The Scottish Association of Landlords (SAL) stated in its submission that it welcomed the proposal as a much more "user friendly" approach to dealing with landlords refusing to carry out essential repairs. SAL, however, went on to argue that the Tribunal's remit should be extended to cover all tenures including local authorities and RSLs. The PRHF also stated that it would like to see The Private Rented Housing Tribunal becoming a cross-tenure tribunal and argues that it would be "inequitable to not set the same standard for all involved in the rented housing sector".

7.15 A number of respondents suggested changes that would be required to equip the Rent Assessment Panel and Committees to allow them to deal with their new role effectively. The most frequently mentioned changes were additional or more effective training, more power and funding and greater support from professionals.

7.16 A majority of respondents were content with the working title "Private Rented Housing Tribunal for Scotland". A relatively small minority of respondents (13%) suggested that the term "Panel" would be preferable to "Tribunal".

7.17 A number of organisations including the RICS and CML suggested that, given the limited role the Rent Assessment Panel and Committees currently have in relation to house condition issues, further training would be required to equip members to undertake their new extended role effectively.

7.18 A number of organisations including COSLA and the CIH argued that a new tribunal should be established rather than extending the role of the Rent Assessment Panel and Committees. They also suggested that there would be a need to recruit members with experience of a wider range of housing issues than at present. The CIH stated in its submission that it supports the creation of a Private Rented Housing Tribunal but would like to see its remit widened to also include the socially rented sector and other tenant and landlord issues, including eviction, tenancy disputes, repayment of deposits etc.

7.19 A number of local authorities including Glasgow City Council noted in their submissions that the proposed role of the Tribunal would appear to overlap substantially with the local authority power to serve repair notices on landlords. In its submission Glasgow City Council argued that a requirement to wait upon a request from the Tribunal would:

"generate unacceptable bureaucracy and delay. Where simple notices relating to one or two defects only are required, the current procedure would be much simpler and faster than the proposals in the consultation paper".

7.20 However, the council also stated in its submission that the Tribunal approach could be effective for "serious and multiple items of disrepair in cases where a landlord has a bad track record of property maintenance at that location or in property elsewhere."

houses in multiple occupation

7.21 Houses in multiple occupation (HMOs) include shared flats, student and nurses' residences, bedsits, hostels etc. Mandatory licensing for HMOs was introduced by the Civic Government (Scotland) Act 1982 (Licensing of Houses in Multiple Occupation) Order 2000. The HITF considered there was a continuing need for HMO licensing but that it should be based on new primary legislation, not be constricted by the legislative framework of the Civic Government (Scotland) Act 1982, which was not designed specifically for the licensing of housing.

7.22 The consultation paper suggested that new primary legislation would have the following advantages:

  • It would allow the Scottish Executive to set national, minimum standards and to have more powers on fees
  • It could allow for different forms of sanctions, such as rent restriction
  • Integrating HMO legislation with the proposed registration and accreditation schemes

7.23 Local authorities currently have powers under Part VIII of the Housing (Scotland) Act 1987 to deal with problems in HMOs. The HITF concluded that these powers were largely obsolete and over-bureaucratic. It suggested that these proposals could be repealed in order to simplify the regulatory system.

7.24 The consultation paper described the main features of the proposed new structure for licensing of HMOs. The main proposals can be summarised as follows:-

  • A licence will be required to operate an HMO and properties need to be licensed if they are the main home of three or more residents and the residents of more than two families
  • Local authorities will have a duty to implement HMO licences in their area
  • Ministers should have the power to designate categories of HMO for discretionary licensing and to issue guidance
  • Local authorities would have the power to refuse licensing applications with or without conditions
  • Ministers would have the power to prescribe mandatory conditions to be attached to such classes of licence as may be specified in order to maintain consistency with developments in other areas of policy
  • All licences would be valid for three years
  • Licence holders would be obliged to inform the licensing authority of any relevant change in circumstances and would not be able to make any physical changes without prior permission of the local authority
  • Local authorities would be able to vary the terms of the licence at their own discretion but would be required to notify the licence holder and allow a reasonable time for any physical changes to the property to be undertaken.
  • Local authorities should keep a register of licences, showing the address of each licensed property
  • Appeals should be made to the Sheriff by the applicant or objectors
  • It would be an offence to operate without a licence, to act as an agent for an unlicensed owner, to fail to comply with license conditions or to make a false declaration

Consultation Questions:

  • Do you agree that a new legislative framework is necessary for Houses in Multiple Occupation? (Paragraphs 127 - 130)
  • Do you agree that the repeal of Part VIII powers is a good idea? If not which powers would you retain?(Paragraph 131)
  • Are you in favour of the proposed changes to the legislative framework for HMO licensing as set out? Would you add to or question any of these changes? (Paragraphs 133 - 153)

7.25 The vast majority (88%) of respondents to this section of the consultation said that they agreed that a new legislative framework for Houses in Multiple Occupation was required. A similarly high percentage (80%) agreed with the proposal to repeal Part VIII powers.

7.26 Almost three-quarters (74%) of those who responded to this section of the consultation agreed with the proposed changes to the legislative framework. A small minority of respondents suggested additional changes or made comments on the proposed changes. The most frequently mentioned additions included more punitive powers for landlords without a licence and longer licensing periods. Some respondents also suggested that private landlords should be required to publicly display their HMO licences.

7.27 The National Association of Estate Agents (NAEA) supported the adoption of a new legislative framework and the repeal of Part VIII powers, however they also argued in their submission for raising of the occupancy level for HMO licensing to 4 people and that licences should be transferable subject to new owners being able to demonstrate they are a 'fit and proper' person.

7.28 The Private Rented Housing Forum (PRHF) also agreed that there is a need for a new legislative framework and that Part VIII powers should be abolished. The PRHF stated that it particularly welcomed the proposal to introduce a standard three year licence period and called for a similar standardised approach to be adopted to the setting of fees for HMO licenses. This view was also supported by the Scottish Association of Landlords.

7.29 COSLA supported the need for a new legislative framework provided "the considerable experience of local authorities who have fully implemented the existing licensing scheme is recognised". It also supported the repeal of Part VIII powers with the exception of Section 162 which COSLA believes is in line with proposed changes to the Fire (Scotland) Bill currently being considered by the Scottish Parliament. This position was also supported by a number of individual local authorities, including the City of Edinburgh Council, in their written submissions.

7.30 A number of local authorities including Glasgow and Edinburgh also supported the changes but emphasised the need to build upon the expertise local authorities have gained in dealing with the existing licensing scheme. In its submission, Glasgow City Council called on the Scottish Executive to provide further guidance and publicity to landlords about clarifying the HMO process for applicants and in particular distinguishing between the different situations of landlords already operating an unlicensed HMO and those considering creating a new HMO.

7.31 The City of Edinburgh Council expressed some reservations about the proposed changes to the framework for licensing HMOs, which it feels could lead to "substantial disruption to operational and administrative arrangements". The council also argued that some scope needs to be maintained for local flexibility in setting standards to reflect local priorities and circumstances.

7.32 The commitment made in the consultation paper to delay introduction of any new legislation until such time as local authorities make progress with the licensing of 3 person HMOs is generally welcomed by respondents who believe this will help avoid confusion and administrative disruption to the licensing process.

Adaptations

7.33 The Housing Improvements Task Force recommended that the Housing (Scotland) Act 1988 should be amended to give private sector tenants the right to carry out adaptations to their homes to meet any particular needs arising from their disability, subject to the consent of their landlord. The proposed Private Rented Housing Tribunal would have a power, on application from a tenant, to decide whether a refusal by a landlord was unreasonable.

Consultation Questions:

  • Do you have any comments on the possible introduction of a right for tenants with disabilities to carry out adaptations to their homes and how it would operate? (Paragraphs 155-156)

7.34 Two thirds of the total number of respondents responded to this section of the consultation paper. Of those who did respond a substantial number made specific comments about the introduction of a right for tenants with disabilities to carry out adaptations to their homes and how such a right would operate. The most frequently mentioned comment related to arrangements for re-instatement or refunding of any adaptations made. A significant minority of respondents also suggested that any adaptations should be carried out on the basis of mutual agreement between tenants and landlords.

7.35 There was strong support for this proposal particularly from voluntary organisations but also from local authorities and national bodies. The Disability Rights Commission supported strongly the proposal to introduce a right to carry out adaptations in private rented houses. It argues that the ability to make adaptations is of fundamental importance to the disability equality agenda. The DRC raises the issue of the right to make adaptations to shared areas e.g. main doors, hallways and stairways which it states is often one of the biggest areas of difficulty for disabled tenants. The DRC therefore makes a strong case that:

"as a logical and necessary extension of disabled people's rights to make adaptations to their own homes, provisions should also be put in place to ensure that disabled people can make adaptations to shared areas and that neighbours' consent to such adaptations can not be withheld unreasonably".

7.36 A number of bodies including COSLA commented on the difficulties such a power may cause landlords who have to reinstate adaptations at their own expense, for example, where a tenant dies or abandons a property. COSLA and a number of individual local authorities also stated that it would be appropriate for the proposed Private Rented Housing Tribunal to be given a role in adjudicating whether or not a refusal by a private landlord to agree to adaptations being undertaken is reasonable.

7.37 The right for tenants with disabilities to carry out adaptations to their houses was also supported by the Private Rented Housing Forum, however, the PRFH also argues strongly that if this right is introduced there should also be a requirement for tenants to restore the property to its original condition at the end of the tenancy and suggests that a bond system could be used to ensure this happens.

Extending The National Registration Scheme For Private Landlords

7.38 The Antisocial Behaviour Scotland Act contains a provision for the establishment of a national registration scheme for private landlords and their properties. This will require that landlords register details of themselves and any agents used to manage their properties and that landlords and agents are subject to a "fit and proper person" test.

7.39 The consultation paper sought views on whether or not it was desirable to extend the registration scheme to require landlords to certify that they are following all relevant legal provisions that apply to letting of a property. However, it also suggested an alternative approach that would impose more explicit conditions which landlords would be required to meet before they and their properties would be allowed on the register.

Consultation Questions:

  • Is it sensible to consider extending this scheme or will this place too great a regulatory burden on landlords? (Paragraphs 157-159)
  • If the registration scheme is to be strengthened should this be on the basis of the "certification" approach set out above?(Paragraphs 158 - 159)
  • If the registration scheme is to be strengthened what conditions should be applied? (Paragraphs 158-159)
  • If the registration scheme is to be strengthened should this be as an alternative to the proposals for the Private Sector Housing Tribunal? (Paragraph 159)

7.40 Nearly two-thirds of those who responded to this section of the consultation paper agreed that it was sensible to consider extending the National Scheme for the Registration of Private Landlords. However, a substantial minority of respondents (36%) said that extending the scheme would place too great a burden on private landlords.

7.41 Of those respondents who agreed with the extension of the scheme, the vast majority (78%) said that the extension should be based upon the certification scheme set out in the consultation paper. A significant number of these respondents said that if the registration scheme was to be extended then the safety and security of tenants should be the paramount consideration in setting conditions.

7.42 The vast majority of those who responded to this issue (65%) said that the extension of the registration scheme should be seen as additional and complementary to the proposal to establish a modernised Private Rented Housing Tribunal. However, a significant minority of respondents (29%) said that the registration should be seen as an alternative to a new tribunal system.

7.43 COSLA was amongst those respondents that were opposed to extending the National Registration Scheme for Private Landlords. In its submission it claimed that such a move would "impose too much regulation on landlords and extra administrative burdens on local authorities". It argues for the new registration scheme to be given "a fair chance" to settle down and that it should be monitored over a three year period before any consideration is given to extending the scheme.

7.44 The Chartered Institute of Housing offered strong support for extending national registration of private landlords. It went on to say that it believes that such a scheme should ultimately cover tenancy conditions, management issues and property conditions. Whilst the CIH recognised that there may be concerns of duplication with the proposed tribunal it believes that:

"the registration scheme is about promoting better standards and is a tool for local authorities to monitor private rented sector standards, whereas the tribunal is there to arbitrate or make binding decisions on individual complaints"

7.45 Glasgow City Council supported this view and suggested that a full evaluation of the existing registration scheme is necessary to determine the extent to which registration can be implemented "within a reasonable timescale, at reasonable costs and without unacceptable damage being caused to the private rented housing sector". It also suggested that a full evaluation of the existing scheme may reveal that a "more selective approach to registration would be both economic and effective".

7.46 Edinburgh City Council, on the other hand suggested that the proposed extension must be "given due consideration to improve the standard of accommodation and management in the private rented sector". However, the council also went on to say that any extension to the scheme should be developed with "the minimum of necessary administration and costs to both landlords and local authorities".

7.47 The PRHF described the suggestion that the scheme should be made compulsory as a "step too far" and also argued that the pilot scheme needs to be fully evaluated before any changes are made. This view was supported by SAL also argued that the national registration scheme should not be extended until such time as the existing scheme can be properly implemented and evaluated.

SUMMARY OF KEY FINDINGS

7.48 The majority of those who responded to this section of the consultation paper agreed with the elements proposed for inclusion in the new modernised Repairing Standard for private landlords.

7.49 A substantial minority of respondents suggested additional elements to be included in the new standard. The most commonly mentioned aspects included health and safety requirements, energy saving and noise insulation, external areas and internal decoration.

7.50 The vast majority (87%) of respondents who responded to this element of the consultation agreed with the proposed range of tenancies to which the new standard would apply. Similarly, the vast majority of respondents (92% of those that responded to the question) agreed that there should be a statutory requirement that all written leases should contain an explicit statement of the private landlords' repairing obligation.

7.51 The proposal to establish a new Private Rented Housing Tribunal was welcomed by a wide range of respondents including those that represent private landlords.

7.52 A number of respondents suggested changes that would be required to equip the Rent Assessment Panel and Committees to allow them to deal with their new role effectively. The most frequently mentioned changes were additional or more effective training, more power and funding and greater support from professionals.

7.53 The majority of respondents were content with the working title "Private Rented Housing Tribunal for Scotland". However, a relatively small minority of respondents suggested that the term "Panel" would be preferable to "Tribunal".

7.54 The vast majority (88%) of respondents to this section of the consultation said that they agreed that a new legislative framework for Houses in Multiple Occupation was required. A similarly high percentage (80%) agreed with the proposal to repeal Part VIII powers.

7.55 There was strong support for the proposal to allow tenants with disabilities to carry out adaptations. Support was strongest amongst voluntary organisations but there was also support from local authorities and national bodies, including representatives of private landlords.

7.56 The Disability Rights Commission made a strong case for the right to make adaptations to be extended to include shared areas e.g. main doors, hallways and stairways, which it states is often one of the biggest areas of difficulty for disabled tenants.

7.57 Nearly two-thirds of those who responded to this section of the consultation paper agreed that it was sensible to consider extending the National Scheme for the Registration of Private Landlords. However, a substantial minority of respondents (36%) said that extending the scheme would place too great a burden on private landlords and local authorities.

« Previous | Contents | Next »

Page updated: Tuesday, May 16, 2006