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EXECUTIVE SUMMARY
i. The Antisocial Behaviour etc. (Scotland) Act 2004
(the Act) gives local authorities additional powers to
regulate rented housing in Scotland. Under Part 7, if
residents are engaging in antisocial behaviour at their
home, and the landlord is not taking normal management
action to address it, the local authority can serve an
antisocial behaviour notice setting out actions the
landlord must take. Under Part 8, all landlords and letting
agents, apart from Registered Social Landlords and some
other exceptions, must register with the local authority.
In order to be registered the local authority must be
satisfied the applicant is a fit and proper person. The Act
lists various factors which the local authority must take
into account in making that decision. It will be an offence
to let any residential property without being
registered.
ii. Scottish Ministers have powers to regulate on
various aspects of how landlord registration and antisocial
behaviour notices will operate in practice, and to issue
guidance to local authorities. Ministers are clear that,
while landlord registration provides a very powerful tool
to deal with bad landlords, the system should be as
light-touch as possible to minimise the impact on the
majority, who provide a good service for their tenants.
Detailed proposals for regulations and guidance have been
developed by a working group representing local authority,
landlord, agent and consumer interests. This consultation
paper seeks comments on those proposals.
Registration - Coverage
iii. The Act excludes from registration houses used by
religious orders and to provide certain categories of care
regulated by the Care Commission. Further exclusions can be
prescribed by order, but Ministers are keen to maintain a
comprehensive register as far as possible. It is proposed
that houses let by resident landlords should be excluded,
because of the nature of this part of the market and the
greater incentives for resident landlords to maintain the
property and manage antisocial behaviour. Agricultural and
crofting tenancies are also suggested for exclusion,
because the tenancy applies primarily to the land and the
responsibilities of landlords and tenants are very
different from those of residential tenancies. We propose
that tenants of tied housing (accommodation provided with
employment) should have the protection of registration,
particularly as there is often no clear agreement on rights
and responsibilities between the owner and the
employee.
iv. The owner of a house is required to register with
the local authority, and to give details of any agent they
use as well as a list of let properties. Agents or
prospective landlords who do not own any property may also
register in their own right. Where the agent or owner is a
company or corporate partnership, the organisation is
registered. If a property is jointly owned by more than one
individual, each individual will need to register. We are
seeking views on the treatment of joint owners.
v. Local authorities will want to identify landlords who
may be letting without registration. A number of sources of
information are proposed, including information from
Housing Benefit records. References to information transfer
throughout the paper are subject to the requirements of
relevant law. Section 139 of the Act is intended to
facilitate the exchange of information between different
agencies and departments. The Scottish Executive is working
closely with the Department for Work and Pensions to ensure
an effective interface between registration and housing
benefit.
Dealing with Applications
vi. Ministers can regulate to require further
information to be provided in an application for
registration, in addition to the applicant's name and
address, the name and address of any agent they use and the
address of each property they let. It is proposed to
require further information in connection with the fit and
proper person test, such as previous convictions and
registrations and a declaration that the applicant complies
with the law relating to letting. A summary of the legal
requirements would be provided to ensure applicants know
what their obligations are. The Scottish Executive is
seeking to amend an order under the Rehabilitation of
Offenders Act 1974 to ensure that local authorities can get
a full picture of an applicant's past record in relation to
letting.
vii. In line with the light touch approach, it is
suggested that applicants should be accepted as fit and
proper without further investigation, unless something on
their application form or information in the local
authority's possession prompts concern. The local authority
will be able to act should information come to light at a
later date which suggests that the registered person is not
fit and proper. In all cases the local authority should
make a balanced judgement on the risk that the applicant
may fail to act properly .
viii. Where there are concerns about an applicant, the
preferred outcome is that the local authority should seek
to change the situation so that the applicant's approach
becomes acceptable. This would minimise any impact on the
supply of accommodation. One way of achieving this might be
for an owner to appoint a reputable agent. Provisions in
the Housing (Scotland) Bill would, if enacted, require the
local authority to take account of any agency agreement in
the fit and proper person test. This paper outlines the
elements that a local authority would want to see in an
agency arrangement if it were to mean that it allowed the
owner to be considered fit and proper.
ix. We propose that local authorities should be required
to provide applicants with information on their legal
obligations and good practice. Where a local authority
considers that an applicant owner is not fit and proper to
be letting houses but could reasonably take steps to become
fit and proper, such as contracting with a suitable agent,
then the local authority should provide information and
advice to the landlord on those steps and how to pursue
them.
x. Ministers are keen to ensure that application
processes are handled in a consistent way across the
country and are as streamlined as possible, avoiding
duplication. The Executive is seeking to provide a single
internet-based online system for local authorities to use.
The system should allow people to apply to more than one
local authority while only giving their details once, and
view the register for every authority. If one authority had
relevant information about an application, this could be
flagged to all other authorities to which the person had
applied. Registration officers would have full access to
the records for their area to process applications and
maintain the register, while other local authority staff
would have access to view the status of applications in
progress. It will also be possible to make an application
on paper.
Costs and Fees
xi. We expect that the income from fees should broadly
cover the costs of the registration scheme. Since the costs
are likely to vary across the country, we intend to
regulate on a fee structure, and allow each authority to
set their fees within that structure. We propose to issue
guidance on the activities which need to be costed for an
authority to arrive at an appropriate fee. The key points
of the proposed structure are that there will be a
principal fee for an application, plus a supplementary
charge for each property listed and each agent used by the
applicant. The principal fee would be higher for late
applications. Discounts would be allowed for online
application, for landlords with charitable status, and
landlords who are members of an approved accreditation
scheme. There would also be proportional discounts for
landlords with large portfolios. Landlords who hold
HMO licences would only have to pay a
fee to register additional properties or agents not covered
by their licence.
xii. The Executive intends to assist local authorities
with the costs of establishing the registration system. We
will discuss with Co
SLA how funding will be distributed to
ensure individual authorities' fees are kept to a
reasonable level. We suggest a starting assumption for
discussions of £50 for the basic principal fee and £10 for
the supplementary charge.
Action on Breach
xiii. There is a range of offences associated with
registration, and a range of penalties which can be
applied. In addition to removing registration (if the
landlord was registered) and seeking prosecution, the local
authority can also serve a notice stating that no rent is
payable on the property. We propose to require that tenants
should receive advice and support where action is taken
against their landlord. If a landlord appeals against a
rent penalty notice, the landlord should notify the tenant
and provide specified information to encourage the tenant
to set aside the money they would otherwise pay in rent,
since they may have to pay it retrospectively if the appeal
is successful.
Other Administration
xiv. With the introduction of registration there will be
three forms by which the quality of private landlords is
recognised or regulated by local authorities: registration,
HMO licensing, and voluntary
accreditation schemes. We propose that holders of
HMO licences who also require to
register should be automatically placed on the register.
Members of voluntary accreditation schemes would be
automatically placed on the register where entry to the
scheme requires an equivalent fit and proper person test
carried out by the local authority. Membership of other
accreditation schemes would count as evidence to be taken
into account in the registration process. Where a person
applies for registration with more than one local
authority, each authority must make its own decision, but
should take into account any relevant information available
from other authorities about the applicant.
Antisocial Behaviour Notices
xv. The Act permits a local authority to serve an
antisocial behaviour notice on the landlord of a "relevant
house" in its area, if any person who occupies the house
under a tenancy or occupancy agreement, or visits the
house, is engaging in antisocial behaviour at or in the
locality of the house. The notice must describe the
antisocial behaviour that has led to the notice being
served, and require the landlord to take specified action
to deal with it, within a specified period. We propose to
regulate to require a local authority to provide advice and
assistance on the management of antisocial behaviour before
serving a notice.
xvi. The Act as it stands does not provide suitable
procedures for houses used for holiday purposes. Ministers
have powers to modify Part 7 of the Act by order as
necessary to suit the circumstances of holiday lets. This
could be required for example because the landlord
specialises in letting for particular purposes such as stag
holidays. However, the modifications required would be
substantial, and we feel there is not yet sufficient
evidence about this issue and the most effective way of
providing for it in legislation. We therefore do not intend
to make such an order at this stage.
xvii. We propose to issue guidance to local authorities
on the types of actions that could be considered good
practice for landlords to take in tackling antisocial
behaviour. We recommend that good practice of this type
should be included in the general advice and training that
local authorities could offer to all registered landlords.
Authorities should ensure that the actions they require are
reasonable and may need to provide support and advice on
relevant legal requirements.
xviii. If a landlord fails to comply with an antisocial
behaviour notice, the local authority can report the
landlord for prosecution as that failure is an offence, can
apply to the sheriff for either an order as to rental
income which suspends the tenant's rent liability, or a
management control order, or can take action to deal with
the antisocial behaviour and recover the costs from the
landlord.
xix. We propose to make regulations so that if a
landlord appeals against an order as to rental income, the
landlord should notify the tenant and provide specified
information to encourage the tenant to set aside the money
they would otherwise pay in rent, since they might have to
pay it retrospectively if the appeal was successful.
xx. Under a management control order, the rights and
responsibilities of the landlord are transferred to the
local authority. We propose to make regulations that the
authority should be able to incur normal day-to-day running
costs, taking into account that additional management time
may be required because of the circumstances that led to
the order being made. Routine maintenance would be
included, but not major improvement work without the
landlord's consent. We also propose that the costs would be
recoverable as a debt.
xxi. Where the local authority takes action to deal with
the antisocial behaviour because the landlord had failed to
comply with the antisocial behaviour notice, we propose to
regulate so that it can recover from the landlord as a
debt, payments made to third parties and its reasonable
administrative and other costs, provided it has given the
landlord notice of its intention to act and an estimate of
the costs.
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