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Volume 1
Chapter 1 Policy

Private sector housing quality - the policy vision

1.1. Over 70% of the houses in Scotland are owned by and are the responsibility of private owners. Too many of those houses are of poor standard, are poorly maintained or prevent disabled people who live in them from maximising their independence. The Scottish Government considers that the extent of poor standards and unsuitability justifies intervention by government.

1.2. National and local government should work in partnership to improve the standard and suitability of existing houses in the private sector. This is not straightforward as the primary responsibility lies with individual owners. Government does not have the direct role that it plays in social rented housing and it must respect individual owners' property rights. It therefore needs to use a mixture of encouragement and assistance, backed up by enforcement where this is justified by the circumstances and the interests of the wider community.

1.3. Getting the blend of encouragement, assistance and enforcement right needs a systematic approach that includes strategic planning and careful judgement on individual cases. The Task Force recognised this and proposed a substantial revision of the approach which had evolved over the 30 years since improvement and repairs grants were introduced into legislation.

1.4. The Housing (Scotland) Act 2006 translates the Task Force recommendations into local authority powers and duties. This guidance explains how local authorities should implement the 2006 Act in line with national policy.

1.5. The policy vision for the future draws on the work of the Task Force and is embodied, through the will of Parliament, in the 2006 Act.

• There will be a cultural change in attitudes to housing quality in the private housing sector.
• Local authorities will lead a marked improvement in the quality of private housing in their areas, benefiting owners and the communities they live in.
• The Scottish Government will support and facilitate their work.
• Private owners will become more aware of repair and maintenance responsibilities and more proactive in carrying them out.
• Private owners will invest more to ensure their homes have a sustainable future.
• Public money will support owners' repairs and maintenance only where that is strictly necessary.
• Government will help disabled people to live more independently in their own homes.

1.6. Other Scottish Government policies work alongside this approach to support this vision, including:

• the Single Survey which, as part of the Home Report required for the re-sale of every house from 1 December 2008, will raise awareness of house condition, give sellers an incentive to carry out repairs and alert buyers to the repairs and maintenance for which they will be responsible;
• continuing developments in the Building Regulations that will ensure that house alterations and new houses coming into the market are to high standards of accessibility and environmental sustainability;
• policies on private sector letting to raise the standards to which private landlords must maintain the properties they let, and give tenants and local authorities more effective means of ensuring those standards are achieved;
• community care policy that aims to support vulnerable people to remain in their own home, and recognises that housing and health legislation directly and indirectly affects how local authorities carry out their community care functions.

Contribution to the Scottish Government's Purpose

1.7. The policy vision and its development in this guidance support the Scottish Government's Purpose and the Government Economic Strategy ( GES) that underpins it ². In particular, the guidance supports the targets in the GES in the following ways.

Growth

1.8. The Housing Improvement Task Force found a very large backlog in repairs in the private sector. Removing barriers to investment in residential infrastructure will boost the construction and repairs sector, particularly amongst small businesses rather than the large firms involved in new build. The guidance aims to achieve this by encouraging local authorities to stimulate more repairs and maintenance activity by owners and by giving them the tools to do this.

1.9. Market failures in the financial sector contribute to the backlog in repairs, through owners finding difficulty in obtaining suitable lending. The guidance addresses these failures in order to further free up demand for repairs and in the longer term to encourage commercial lenders to expand their provision in this part of the market.

1.10. Improving the quality of private sector housing not only raises the value of the property itself but the value of surrounding buildings and areas. This can in turn stimulate private sector investment.

1.11. Substantial resources of public money and carers' time are used to assist disabled people in coping with everyday life because their houses present barriers to their doing this without assistance or with less assistance. The guidance and regulations propose substantial improvements to support for house adaptations that, by removing or reducing those barriers, should free up community care funding and allow carers to increase their time spent on economically productive activities.

Productivity

1.12. Research has shown that around half of recipients of government grant towards house repair costs would have carried out the work anyway if grant had not been available. This is inefficient and removing this 'deadweight activity' through the means shown in the guidance will enable government to focus expenditure on areas where there is a greater economic return.

Population

1.13. In-migration is vital to the population target. The availability of housing of acceptable quality at the lower end of the market affects Scotland's attractiveness to potential in-migrants. The guidance is intended to encourage an improvement in the quality of private housing, mainly at the lower end of the market.

Solidarity

1.14. Although wealth inequalities are, in general, reduced by the increasing proportion of home ownership, many owners have difficulty with the demands on their income of meeting their repair and maintenance responsibilities. The guidance shows how the powers in the 2006 Act can be used to reduce the risk of poorer owners being marginalised and suffering greater social disadvantage.

Cohesion

1.15. There are substantial variations in the quality of the private housing stock across the country. Whilst the draft guidance is unlikely to have a direct effect on participation rates (which is how the cohesion target is defined), the approach in the guidance will primarily address housing quality in Scotland's 'worst' areas. This will help to correct the imbalance in wealth and social disadvantage between the regions in which they lie and other regions.

Sustainability

1.16. The GES entails substantial activity across sectors to increase the quality and supply of housing in Scotland. Where there is a choice, the carbon load from repairing an existing house is generally substantially less than that from replacing it with a new house. The guidance proposes a strategic approach for local authorities to maximise cost-effective activity for existing private sector houses.

1.17. The guidance focuses on addressing the quality of the housing that is in the worst physical condition or threatens to deteriorate. There is a broader task to be undertaken to improve the energy efficiency of all existing private housing. The strategic planning and delivery mechanisms in the guidance allow local authorities to act on this task and also create the potential for substantial synergy with the proposals that the Scottish Government is developing for delivery of its energy efficiency agenda.

1.18. As carbon accounting tools become available they will be built into revisions of guidance to help inform local authorities' strategic choices.

Policy objectives and key themes

1.19. National policy objectives for putting the policy vision into effect are:

• Local authorities will plan and implement action that suits the needs of their areas.
• National priorities, local priorities and recognised good practice will all inform the action they take.
• Local and national government will work together to raise awareness amongst house owners.
• Local authorities or their partners will deliver advice and assistance that facilitates action by as many house owners as possible.
• Owners will have cost-effective options for financial assistance available to them to maximise their own investment in their properties in a way that they can afford.
• Local authorities will use enforcement powers where advice and assistance does not achieve priority objectives.
• Each local authority's actions will result in a significant reduction in the number of substandard houses in the private housing stock and a significant increase in the proportion of disabled people able to live more independent lives because they have adapted their own home or moved to a more suitable house.

1.20. To help achieve these objectives, the key themes in this guidance and the accompanying regulations are:

• strategic planning to achieve better quality private housing, linked into the authority's Local Housing Strategy
• the authority's statement of criteria for providing assistance, under section 72 of the 2006 Act
• a new and distinct difference between the approach for repairs and maintenance and the approach for adaptations to help disabled occupants
• for repairs and maintenance:
• striking the balance between assistance and enforcement
• moving away from grant dependency
• flexible and preventative enforcement action
• detailed advisory guidance for consistency and fairness
• guidance on the Tolerable Standard for the first time
• for adaptations to help disabled occupants:
• close partnership working with health and community care colleagues
• grant of at least 80% for most adaptations
• raising awareness
• personalised service delivery
• use of delivery partners wherever appropriate
• lending through a central resource for those who can afford it but cannot access commercial lending
• good practice, networking and developing the skills base
• developing good information on private sector house condition
• monitoring and evaluation to improve policy and delivery nationally and locally.

Leading a change of culture

1.21. The powers and duties in the 2006 Act are the biggest change for Scotland in this area of policy since 1974, and replace a regime that has remained essentially the same since then. Social conditions, public expectations and the nature of public service delivery have all changed markedly in that time.

1.22. Perhaps the most significant change behind the 2006 Act is to move away from the expectation that government will provide grant. Although grant will be necessary in some circumstances, moving away from a grant-led approach should mean that government intervention is much more active and effective in getting owners to invest their own money in the repair, improvement and maintenance of their houses. This should enable a much greater impact on private sector housing conditions than would be possible from public sector resources alone.

1.23. Owners need to accept their responsibility to act and to give sufficient priority to the use of their resources for work on their houses. Service delivery needs to focus on a community outlook and a personalised approach as well as on the buildings themselves. Providers of other services need to be alert to the impact of housing conditions on the issues that they deal with. Implementing the Act involves a change of outlook, of culture, and may challenge established views and assumptions - which requires leadership, encouragement and nurturing over an extended period.

1.24. The new powers in the 2006 Act give local authorities unprecedented potential to make an important and lasting improvement in housing conditions in Scotland. Imaginative and constructive use of the new powers will encourage, assist and, if necessary, require many more owners than at present to take the right action at the right time. Local authorities need to do this in order to make a serious impact on the state of housing in the private sector.

1.25. Ministers ask councillors, chief executives and senior managers responsible for housing to grasp the leadership role firmly and drive change in their areas.

Local and national government working in partnership

1.26. The Concordat between the Scottish Government and local government sets out the terms of a new relationship between the Scottish Government and local government, based on mutual respect and partnership. There is a shared commitment by the Scottish Government and local government to achieve national and local priorities. At a local level local authorities with their Community Planning Partners will identify priorities and local outcomes. It is expected that these local outcomes will fit with the national outcomes.

1.27. The Scottish Government has established a single 'pot' of local government funding with each authority managing its own allocation to achieve its outcomes. In the case of funding to support activity in the private housing sector (Private Sector Housing Grant), the ring fencing of the grant made by the Scottish Government to individual authorities continues for 2008/09 and 2009/10 to provide funding stability while the arrangements in this guidance are established. In 2010/11 Private Sector Housing Grant will become part of the general 'pot'.

1.28. The Housing (Scotland) Act 2006 pre-dated this change of approach. It was developed and passed by Parliament on the assumption that various aspects of national policy would be dealt with by guidance and regulations within the framework provided by the Act. The present guidance and the regulations that underpin it aim to take forward the policy in the Act while respecting local authorities' freedom to manage in accordance with the Concordat between the Scottish Government and local government. The statutory guidance (see chapter 2) and the regulations provide the framework for a consistent approach across the country where this is important. The guidance as a whole is intended to help local authorities develop their own approaches without having to re-invent.

1.29. The Scottish Government is providing support to local authorities in various ways where this avoids duplication or provides necessary economies of scale. In particular, this applies to a national awareness campaign, the provision of standard information materials to be tailored for local use and the establishment of a national lending unit.

1.30. We are also supporting the development and dissemination of good practice to spread the benefit of experience and innovation, together with the development of training and development options. We are keen for local authorities to drive this process collectively, with support from the Scottish Government working in partnership with them (see chapter 4).

Local authority powers and duties - 2006 Act and other legislation

1.31. The Housing (Scotland) Act 2006 gives local authorities a range of powers to encourage owners to exercise their responsibility for house condition.

1.32. The "Scheme of Assistance" provisions in Part 2 of the 2006 Act give authorities powers to assist owners who find it difficult to meet their responsibility, including those with additional support needs who are least able to deal with the barriers to carrying out works. These powers are dealt with in volume 5, with additional material in volume 6.

1.33. Some owners do not respond to assistance and do not meet their responsibilities. Local authorities have powers to take enforcement action in the interests of the household, of the local community or both. These powers are in Part 1 of the 2006 Act. They expand and update previous powers. They are designed to be flexible so that authorities can take the right enforcement action to suit the circumstances. They include new powers for preventative action to deal with maintenance and repair problems before they are too far advanced. These powers are dealt with in volumes 2, 3 and 4.

1.34. The 2006 Act includes (in section 10) duties for local authorities to plan strategically for improving the standard of housing in their area, in their Local Housing Strategy. This applies particularly to the use of their powers to deal with houses below the tolerable standard, to create Housing Renewal Areas and to provide or arrange for assistance. There is also a duty in section 72 to establish and make available their criteria for the use of assistance powers in Part 2 of the Act.

1.35. Alongside the powers and duties in the 2006 Act, local authorities continue to have other powers that help them to deal with poor private sector housing conditions. These include:

• statutory nuisance powers;

Environmental Health powers may be a more direct and simpler way to deal with some problems.

• dangerous building powers;

Immediate action where there is a danger to the public may be best dealt with under the Building Acts.

• private landlord measures;

Private landlord registration and HMO licensing provide strong levers for dealing with poor management, including building maintenance.

• property law reform;

Legislation on tenements and title conditions helps to remove barriers to action by clarifying responsibilities between owners.

• power to advance well-being in the Local Government in Scotland Act 2003;

Local authorities should consider using this power where there is a need that is not covered by other powers.

1.36. Local authorities also have a range of powers and duties relating to provision of services for disabled people. Each local authority has a duty under the Chronically Sick and Disabled Persons Act 1970 to arrange for disabled persons' needs to be met, and related powers under community care legislation. This legislation, which has particular relevance to the provision of adaptations, is covered in volume 5, chapter 4 - Section 72 Statement of Assistance.

1.37. Other legislation also helps owners and private tenants take action themselves, including:

• the Home Report to be required from 1 December 2008 under Part 3 of the 2006 Act;
• the revised repairing standard and the Private Rented Housing Panel, introduced under Part 1 Chapter 4 of the 2006 Act in September 2007; and
• the Tenements (Scotland) Act 2004, which clarifies responsibilities for parts of buildings and areas owned in common.

Change from 1987 Act powers and duties - transition and timing

1.38. The powers and duties in the 2006 Act that this guidance covers replace provisions in the Housing (Scotland) Act 1987, and regulations made under that Act. Ministers make a "commencement order" to determine when the various provisions in the new legislation come into effect and when the superseded legislation is repealed.

1.39. We know from discussion with local authorities that most will need time to make changes to their policies, practices and structures after we have finalised the guidance and regulations. The amount of change needed will differ between authorities according to the arrangements that are currently in place. It would be unfortunate if some authorities had not completed their arrangements by the date in the commencement order or if others had completed their preparations and had to wait unnecessarily.

1.40. We are therefore commencing the powers and duties in chapters 1, 2, 3, 5 and 6 of Part 1 of the 2006 Act and the whole of Part 2 as at [provisionally 1 October] 2008 but will not implement the repeal of equivalent sections in the Housing (Scotland) Act 1987 until [provisionally 31 March] 2009. We give more detail in chapter 4. This will allow each authority to take up the new powers at a time (within the first [period as determined by consultation] of commencement) suited to its own state of readiness, and to continue using existing powers until that point.

1.41. The clearest point of transition from one regime to the other is when the local authority publishes its criteria for assistance as required by section 72 of the Act. The authority will have to take account of resources, enforcement policies and so on in deciding what criteria will work for its area. This means the section 72 statement will need to reflect the full range of its policies for dealing with private sector housing condition. We therefore expect the publication of the section 72 statement to be the point at which the authority implements the 2006 Act powers and cease to use 1987 Act powers.

Questions:

Do you agree that the publication of the section 72 statement is the best point of transition?

Is a transition period of 6 months appropriate?

1.42. Each local authority will also need to incorporate its policies for the private sector in the 2009 Local Housing Strategy. The work done for the development of the section 72 statement should support and feed into the process for the next full Local Housing Strategy scheduled for 2009 (see also chapter 3).

1.43. Because the new approach will be fairer and help more people, Ministers encourage authorities to make the transition as soon as possible after the new powers come into effect.

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