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REGULATION OF PRIVATE LANDLORDS UNDER THE ANTISOCIAL BEHAVIOUR ETC. (SCOTLAND) ACT 2004: Consultation on the Implementation of Parts 7 and 8

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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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Page updated: Friday, July 8, 2005