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Volume 2
Chapter 2 Sub-standard Housing, Local Amenity And Use Of Powers

2.1. This chapter looks at the key terms local authorities will need to understand in order to apply the new powers. It also offers some good practice suggestions for using these powers.

2.2. Local authorities will find it useful to familiarise themselves with these terms before considering whether to use HRAs or work notices. They might also wish to consider the tie-in to issues of maintenance, as set out in Volume 3 Maintenance.

s1

2.3. There are two situations where local authorities can use the new enforcement powers to deal with poor quality housing. These are where:

• housing is sub-standard, to bring it into and keep it in a reasonable state of repair (which must at least meet the tolerable standard); or
• the appearance or state of repair of houses is adversely affecting the amenity of the area, to enhance it.

1987 Act

2.4. This is wider than under the previous powers. Authorities could use Housing Action Areas ( HAAs), repairs notices and improvement orders only where a house was below the tolerable standard ( BTS) or in serious disrepair.

2.5. Local authorities will be responsible for deciding whether either of the situations described in paragraph 2.3 applies to a house. In some cases there will be factual evidence, for example where the authority identifies a house as failing the tolerable standard for demonstrable reasons. But other decisions will by nature involve a degree of subjectivity, for example as to whether the number of sub-standard houses is "significant".

2.6. It will therefore be important to engage with owners, tenants and any other interested parties from an early stage. This will help gauge support for these decisions, and help inform whether the proposed action is appropriate. There is further information on formal consultation requirements in Chapter 3 paragraphs 3.88-3.94.

2.7. Local authorities may identify these houses themselves, or owners/property managers and tenants may contact the authority to advise them of a problem. It will be up to the local authority to determine how it prioritises cases.

2.8. Local authorities will also need to determine what the most appropriate route is to deal with each case. It would be good practice in the first instance to encourage voluntary action by providing assistance. Failing this, authorities will want to consider whether they want to take statutory action, and what form of action to take, for example whether to use HRAs, serve work notices or use other powers, such as under environmental health legislation. See also paragraphs 2.49-2.62.

Sub-standard housing

s68 (1)

2.9. A house is sub-standard if it is:

• below the tolerable standard;
• in a state of serious disrepair; or
• in need of repair and is likely to deteriorate rapidly or damage other premises if nothing is done to repair it.

s68 (2)

2.10. The local authority should not look at the age, character, location or decoration of a house when considering whether it is sub-standard against any of these elements. Internal decoration was not a factor under the 1987 Act either in relation to the Tolerable Standard or disrepair.

House

s194 (1)

2.11. A house is any living accommodation which is, or which is capable of being, occupied as a separate dwelling. For example, in a common stairwell or close this would include any flats which have been lying empty or which owners use as holiday accommodation. These powers do not apply to mobile homes ³ or any other living accommodation which is not a building (for example a house boat) .

2.12. Local authorities may be familiar with the term "building" under the Building (Scotland) Acts, where essentially a building is a structure permanently built on foundations rather than a moveable structure. There is no definition of "building" in the 2006 Act, so it will be up to local authorities to decide in each case whether the 2006 powers will apply.

s194 (1)

2.13. It is worth noting that the definition of a "house" in the Act includes facilities or areas which are communally owned, as well as other related areas, such as gardens or out-houses. So local authorities can use the new powers to deal with problems with, for example, stairwells, bin stores, roofs, gardens, drying greens, back courts, yards, garages or outhouses.

2.14. Local authorities will want to consider whether problems with these related areas are enough to trigger statutory action under the 2006 Act. It may be that there are other routes which the local authority could use. This might include providing assistance, using maintenance orders (under Chapter 6 of the Act - see guidance) or using other powers, such as under environmental health legislation . Or it might be appropriate to use the 2006 Act to deal with these issues when others to do with the house have been identified.

s69

2.15. Sub-standard housing might be in a building which contains non-residential premises, for example where there is a shop on the ground floor of a tenement block. Local authorities can use the new powers to deal with the non-residential premises, but only if the work is needed to deal with the sub-standard housing. If the housing in the block is not sub-standard the local authority cannot use these powers to deal with poor quality in the ground floor shop on its own. This is the same as for repairs notices under the 1987 Act.

s193

2.16. Local authorities will also wish to note that the 2006 Act binds the Crown. This means that they no longer need the consent of the Crown before serving a notice on a house which it owns, for example on Ministry of Defence housing. This is a change from the situation for improvement orders under the 1987 Act.

Tolerable Standard

Ch 3

2.17. The tolerable standard is the minimum standard a house should come up to. The 2006 Act updates the definition of the tolerable standard by adding criteria for thermal insulation and electrical installations.

2.18. We have worked with an expert group to produce statutory guidance on the application of each element of the tolerable standard. For more information see Volume 4 Tolerable Standard.

s11(3) (1A)

2.19. Local authorities should have regard to this guidance, although interpretation of the law is for the local authority as enforcing authority and for the courts.

s68

2.20. A house which is BTS is sub-standard for the purposes of this Act.

Serious Disrepair

2.21. Local authorities are responsible for determining whether a house is in a state of serious disrepair. This is the same as when dealing with repairs notices under the 1987 Act. Neither the 1987 Act nor the 2006 Act defines "state of serious disrepair".

2.22. Authorities will want to be able to demonstrate that they have made a reasonable judgement in deciding that the disrepair is "serious". The authority will need to be consistent in the way it makes such judgements, or it may be difficult to justify a decision if owners or residents challenge it. It would be sensible for local authorities to develop a suitable framework for use by their staff.

2.23. Local authorities are already working with the concept of "serious disrepair" in relation to the Scottish Housing Quality Standard ( SHQS). The Scottish Government requires local authorities and Registered Social Landlords ( RSLs) to ensure that all rented housing they own meets this standard by 2015.

2.24. There is no requirement for private housing to meet the SHQS. However, local authorities might wish to consider taking account of the SHQS definition of "serious disrepair" when deciding whether a house is sub-standard.

2.25. The Scottish Government has issued guidance to local authorities on the SHQS. This provides further information on when a house should not be considered to be free from serious disrepair. The guidance letter, and subsequent clarification, are available at www.scotland.gov.uk/consultations/housing/msshletter.pdf and http://www.scotland.gov.uk/Resource/Doc/47060/0028724.pdf.

In need of repair

2.26. A house is sub-standard if it is in need of repair and is likely to deteriorate rapidly or damage other premises if nothing is done to repair it. Under the 1987 Act local authorities could treat houses in this situation as though they were in serious disrepair, and serve repair notices on them to get them fixed.

2.27. There is no definition in the Act of when a house is in need of repair. The local authority is responsible for deciding whether this applies to houses in its area.

2.28. The HRA designation order and subsequent work notice will identify a house as being sub-standard. It will be up to the local authority to decide whether the order and/or notice will also distinguish between the house being BTS, in serious disrepair or in need of repair (see also annexes B and C). But in any case, it will be good practice for the local authority to develop a consistent approach to assessing a house as being in need of repair. This will be important if an owner challenges the local authority's decision to identify their property as needing work.

2.29. Again, the local authority will want to satisfy itself that the 2006 powers are the most appropriate way to deal with the problem. Other relevant legislation might include the Building (Scotland) Act 2003.

Link to the Scottish House Condition Survey

2.30. Local authorities will be responsible for determining whether a house meets the criteria for being sub-standard. The Scottish House Condition Survey ⁴ ( SHCS) provides national and localised analysis of physical quality, including detailed reporting on housing disrepair issues. The SHCS team in the Scottish Government intends, during 2008, to review how it reports on disrepair, with a view to aligning the terms used with those used in the 2006 Act.

Appearance or state of repair of house adversely affecting the amenity of the area

s1 (b)

2.31. Local authorities will have a new power to deal with housing which may not be sub-standard, but whose appearance or state of repair is affecting the amenity of an area.

2.32. This is likely to be the most subjective decision local authorities will make in terms of housing quality. There is a wide range of situations where this could apply. It may be that a variety of factors add up to any houses affecting the amenity, for example where there is a house with overgrown gardens, rubbish in a front yard looking onto the street and peeling paintwork. Local authorities might also want to consider whether the area in question is subject to a wider regeneration strategy or masterplan.

s68 (2)

2.33. There are restrictions to what local authorities can take account of when deciding whether a house is sub-standard (see paragraph 2.10). These restrictions do not apply when deciding if any houses are affecting the amenity of the area.

2.34. Local authorities are more likely to base decisions under this category on their subjective impression of the house within the area, rather than identifying the quality of the house as somewhere to live. It will be very important to ensure a consistent approach within the local authority as to how it makes these decisions. It would be sensible for authorities to agree a framework for such decisions for their staff to work within, to ensure that their decisions are reasonable. Local authorities might also find it useful to develop a practitioners' network so that they can share their experiences with other authorities.

2.35. For example, authorities may wish to take account of residents' views on the impact of the houses on their locality. They might want to seek experts' views on the effect on house valuations, or consider gathering evidence to compare these houses to other houses in the area.

2.36. Local authorities can designate an HRA wherever a locality meets the criteria set out in the Act (Chapter 1 section 1). But it would be good practice for local authorities to ensure that their response is proportionate. For example, it might be appropriate to designate an HRA where there is a strong view that there is a real problem for the area and that there would be unacceptable consequences for the community if the authority did not step in.

s95

2.37. Chapter 1 gives local authorities powers to deal with housing which is adversely affecting the amenity of an area (see paragraphs 2.11 to 2.16 for the definition of "house"). These powers do not extend to entirely non-residential premises. But local authorities do have separate powers to deal with such premises or land which are affecting the amenity of a predominantly residential area. These are set out in s95 (for more information see Chapter 3 of Volume 5 Scheme of Assistance).

Housing identified - what now?

Information, Advice and Guidance

2.38. Local authorities should consider what support or assistance they provide throughout the process of identifying and dealing with poor quality housing. If the local authority has identified a problem, it would be good practice for it to contact the owner or occupier in the first instance to ensure they are aware of it. Alternatively it may be that owners themselves have brought the problem to the local authority's attention.

2.39. In either case it would be good practice for local authorities to provide assistance to encourage owners to get the work done. It will be important to ensure that owners are aware of their rights under the new legislation, as well as their responsibilities.

2.40. If this doesn't work, local authorities can use the new enforcement powers. Again, the authority should continue to consider what assistance it will provide if this happens.

2.41. Local authorities should consider any equalities issues when making any contact. This would include written correspondence or visits in person. In particular, local authorities should be able to accommodate translation and interpretation services and any need for information in different formats.

New powers

Ch 1, 5

2.42. The Act introduces new enforcement powers, where local authorities need to deal with poor quality housing, through Housing Renewal Areas ( HRAs), work notices or demolition notices. The following flowchart summarises this:-

s1(b), s30 (1)(a)

2.43. Local authorities can use HRAs where any houses are adversely affecting the amenity of the area, to enhance it. They can then serve work notices on the owners of housing in the area to enforce the HRA action plan.

s1 (a), s30 (1)(a)

2.44. Local authorities can designate an HRA where a significant amount of housing in the area is sub-standard, to bring the housing up to and keep it in a reasonable state of repair, or to remove it by demolition if necessary. The local authority can serve work or demolition notices on the owners to carry out the work which the HRA identifies.

2.45. An HRA can also be set up to deal with both a significant amount of sub-standard housing and housing which is affecting the amenity of the area.

s30 (1)(a)

2.46. Local authorities can serve work notices on individual sub-standard houses outwith HRAs, to bring them up to and keep them in a reasonable state of repair. They will also continue to have powers under the 1987 Act to issue closing or demolition orders to deal with BTS housing that ought to be demolished.

2.47. The new powers help local authorities deal with problems in private housing. But there is nothing to stop local authorities using the new powers to deal with poor quality housing issues in other tenures, for example houses owned by Registered Social Landlords ( RSLs).

2.48. There is further information on HRAs in Chapter 3, and on work and demolition notices in Chapter 4.

Use of powers

Area basis ( HRAs) or individual houses (work notices)

2.49. Once the local authority has identified sub-standard housing, it may need to consider whether it is more appropriate to deal with the problem on an area basis by designating an HRA, or to go straight to issuing work notices on individual houses. In doing this, one factor that local authorities will wish to consider is if and how an area-based HRA supports and/or complements broader plans for regeneration.

2.50. There will be a number of factors to consider in each situation, in terms of what the issue is, how much housing is affected, and resource implications. There may be less administration for local authorities in issuing individual work notices rather than designating an HRA. But HRA action plans and the work notices that support them can cover matters that a work notice issued separately for an individual house cannot include, such as improving safety and security (see Chapter 4 for more information).

2.51. If the local authority has identified a house for demolition, it will need to consider why it made that decision. For example, if it is because the house is in a state of serious disrepair, the local authority would need to deal with the house as part of an HRA - it can only serve demolition notices on houses within an HRA. If a building needs to be demolished because it is BTS, then the local authority could issue a closing or demolition order under the 1987 Act.

2.52. A local authority might have identified an area where the appearance or state of repair of any houses is adversely affecting its amenity. If it wanted to deal with this under the 2006 Act rather than another power (see paragraphs 2.57-2.62), it would have to designate an HRA, and then use work notices to implement it. This is because a local authority cannot use a work notice to deal with amenity issues on houses outwith an HRA.

2.53. In all cases it will be up to the local authority to decide what the most appropriate route is to deal with issues of poor housing quality.

2.54. The 2006 Act extends the scope of the existing local housing strategy ⁵ ( LHS). Local authorities will have to set out how they intend to identify parts of their area for designation as HRAs as part of their Local Housing Strategy ( LHS) ⁶. Separate detailed guidance is available to assist local authorities with their LHS duty ⁷. We are currently updating the guidance to reflect the priorities of the new Government and changes to legislation since its original publication in 2003. The updated version of the guidance will be available in due course.

2.55. There is no requirement under the Act for authorities to designate a certain number of HRAs. Local authorities will want consider their use of HRAs based on their local circumstances, for example taking account of the scale of the work involved in establishing the HRA.

2.56. The designation of an HRA and associated works might form an important element of wider regeneration or development plans for an area. Local authorities will wish to consider if and how a proposed HRA fits with these plans, and the timing and phasing of wider development.

2006 Act or other legislation?

2.57. Local authorities may have been dealing with private housing quality issues without designating HAAs and/or serving notices or orders, for example by using other legislative powers.

2.58. The new powers in Chapter 1 and 5 of the 2006 Act provide more flexibility to deal with poor quality housing than was available under the 1987 Act. These powers will sit within the wider context of legislation available to the authority.

2.59. The local authority should continue to assess what the most appropriate route is to deal with the issues it has found. This may be the new powers under the 2006 Act, other legislation, or a combination of the powers where there are multiple problems.

s71 s73

2.60. Part of this might include a consideration of the urgency of the problem. If a house is in such a state of serious disrepair that it is dangerous then it might be more appropriate to deal with it under Building (Scotland) Act 2003 rather than serving a work notice. There might also be issues around the availability of support for owners. There may be different support available under environmental health or planning powers, whereas Scheme of Assistance can apply to HRAs and must apply to work notices.

2.61. Whatever route the local authority takes to deal with issues it has identified, it should think about what action it will need to take to ensure that the improvements to the area are sustainable. For example, this might include providing information or advice to owners on how to maintain their property in the future.

2.62. Local authorities will have new powers under the 2006 Act to issue maintenance orders where owners have not maintained, or are unlikely to maintain, their properties to a reasonable standard. This can include where the benefit of a work notice has been lost due to a lack of maintenance. For more information see Volume 3 Maintenance.

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