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Volume3
Chapter 3 Maintenance Plan
Legislation
s42
What is a maintenance plan?
3.1. The maintenance plan is a document which sets out a programme of work to secure the maintenance of a house to a reasonable standard.
3.2. It will cover up to a five year period, as set out in the maintenance order.
3.3. The owner of the house should produce the plan and submit it to the local authority for approval by the date set out in the maintenance order.
s43
What should be in the maintenance plan?
3.4. The plan must specify:
- what maintenance is to be carried out throughout the period of the plan;
- any steps to be taken to carry out this maintenance;
- when these steps are to happen; and
- an estimate of the likely costs.
3.5. The "steps" can include the repair or replacement of anything which is to be maintained under the plan.
s44, s45
Joint maintenance plans - extra provision
3.6. If there are two or more houses in any premises, the maintenance order can require the owners to produce a joint maintenance plan. The plan can cover any part of the premises, including (but not restricted to) parts which the owners own in common.
3.7. In this situation, the maintenance plan must also apportion the liability of each joint owner in respect of the costs of implementing the plan in such manner as the owners of those houses think fit. But this cannot go against any real burdens (as set out in the title deeds), development management scheme ( DMS) or tenement management scheme ( TMS).
3.8. The maintenance plan may also:
- apportion responsibility for maintaining the houses to which the maintenance plan relates in such manner as the owners of those houses think fit, or as the authority thinks fit if it devises the plan (see paragraphs 3.18 and 3.19) - although this cannot go against anything in the title deeds, DMS or TMS;
- require those owners to appoint a person to manage the implementation of the plan;
- require those owners to open, and deposit sums into, a maintenance account;
- set out the arrangements for operating a maintenance account (including arrangements for authorising withdrawals from it and for winding up and closure).
3.9. A joint maintenance plan can set out maintenance for any areas of the property which a person owns or has responsibility for by virtue of a real burden or otherwise. So a joint maintenance plan can cover areas of the premises which owners do not own communally.
3.10. But in this case, the maintenance plan cannot apportion costs or responsibility to owners if they do not own that part or have a responsibility by virtue of a real burden.
s46
What happens once the owner submits the plan?
3.11. The owner should submit the maintenance plan to the local authority by the date set out in the maintenance order.
3.12. The local authority should then assess the plan. It can either approve it or reject it.
Assessment
3.13. The aim of the plan is to secure the maintenance of the house to a reasonable standard. So the local authority will want to satisfy itself that the plan will achieve this.
3.14. For the local authority to approve the plan, it must contain the elements which paragraph 3.4 sets out.
3.15. If it is for two or more houses, it must also meet the requirements for apportioning responsibility (as paragraphs 3.6-3.10). The authority will have to satisfy itself that this does not go against anything in the title deeds, DMS or TMS. A majority of owners must also have agreed to the maintenance plan before the local authority can approve it.
3.16. The local authority can approve the plan, with or without modifications. For example, the local authority might be satisfied that the plan will maintain the house to a reasonable standard, but is not content with the way the plan apportions costs. In this case it could approve the plan, but with amendments to the costs each owner will be liable for .
3.17. If the local authority decides that a plan is not suitable, it can reject it. It can then devise a maintenance plan of its own for the house. Or it can issue another maintenance order to require the owner to submit a new maintenance plan.
s46 (1)(c)
What happens if the owner does not submit the maintenance plan by the date set out in the maintenance order?
3.18. The local authority can devise a maintenance plan if the owner of the house does not submit one in time.
3.19. But it can only do this once the date which the maintenance order specifies for submission has passed - the local authority must give owners the opportunity to draw up the plan themselves in the first instance.
What else does the local authority have to do to use maintenance plans?
s46 (4),(5)
3.20. The local authority must notify owners of its decision to approve or reject a plan. If it has modified the plan, or substituted one of its own devising, it must include a copy of the plan with the notice.
s46 (4), 5)
3.21. The local authority must also notify the owner if it has devised a plan where the owner did not submit one. Again, this should include a copy of the plan.
3.22. Annex C Service Of Documents gives more information on what the local authority needs to do when serving a notice.
s61, 63(7)
3.23. The local authority must also register all plans which it has approved or devised with the relevant register (there will be a charge to do this) . But it does not have to do this until after the period for appeal has passed, or the appeal (if made) has been abandoned or finally determined.
s46 (6)
3.24. Once the local authority has served notice of its decision to approve, reject or devise a maintenance plan, the maintenance order relating to that house will no longer have effect.
s47
Varying the maintenance plan
3.25. The local authority can vary a maintenance plan at the request of the owner, or of its own accord.
3.26. It can vary the maintenance plan at any time if there is a change in circumstances which justifies the variation.
3.27. It can also vary the maintenance plan before it enforces it (see Chapter 4 Carrying Out The Maintenance Plan).
s62
3.28. Again, the local authority must notify the owner of any variation . The notice should include a copy of the varied plan (see Annex C Service Of Documents for more information).
s61 (1) (e)
3.29. It must also register the varied plan.
Revoking the maintenance plan
s47
3.30. The local authority can revoke a maintenance plan if it is satisfied at any point that it is no longer feasible to implement the plan. But it must be sure that it is not possible to vary the plan in order to make it practicable before it takes the decision to revoke it.
s62, 61 (1)(f)
3.31. The authority must serve notice of revocation (see also Annex C Service Of Documents), and register the notice of revocation in the appropriate land register.
Appeals
s64-66
3.32. Owners can appeal against the decision to approve or devise a maintenance plan. They can also appeal against any variation or revocation of a maintenance plan. The right to appeal lasts for 21 days from the date the notice is served. There is more information on the appeals process in Annex D Appeals.
Policy and Good Practice
What is a maintenance plan?
3.33. The maintenance order will have set out how long the maintenance plan is to cover, and how long owners will have to submit a plan to the local authority. The maintenance order chapter contains some good practice suggestions for local authorities when deciding on these timescales.
Standard form?
3.34. There is no standard form for a maintenance plan. But the local authority might find it useful to provide a template for owners when it issues a maintenance order, to help them to put together a plan which the local authority is likely to approve.
3.35. The local authority could also use this template if it has to devise a plan, either because the owner's plan is unsuitable, or because he or she hasn't submitted a plan by the date which the order specifies.
3.36. If the local authority produces a template, it will need to ensure that the plan covers the minimum requirements set out in paragraphs 3.4-3.10. It will also want to consider what it will be looking for when it assesses plans, as this will affect the design of the form.
Information to owners
3.37. Whether or not the local authority decides to provide a template, it will be important that it gives owners clear and accessible information on what it will be expecting the maintenance plan to provide when it comes to assess it. This will enable owners to submit plans which the local authority is more likely to be able to approve.
3.38. So the local authority will need to have thought about how it will assess maintenance plans before it issues maintenance orders. Paragraphs 3.44-3.91 look in more detail at these considerations.
3.39. Annex B summarises these discussions around maintenance plans.
3.40 The following flowchart summarises the key processes in putting a maintenance plan in place.
What happens once the owner submits the plan?
3.41. The local authority is responsible for assessing the plan. It will want to think about how to manage this process, for example how it will assess whether the plan is appropriate, and who will be involved in this assessment.
3.42. It would also be useful for local authorities to have a system which will highlight when an owner has not submitted a plan by the date which the maintenance order specifies.
3.43. There is no time limit in the Act for local authorities to assess plans which owners submit to them. But it would be advisable for local authorities to do this as quickly as possible. This will mean that the plan will be appropriate to the current state of the house, and that owners will take on their responsibility for implementing the plan as soon as possible.
Assessment
3.44. The local authority can approve a maintenance plan (with or without modifications) or reject it.
3.45. The local authority will want to consider how it will assess the maintenance plan before it issues a maintenance order, so that it can provide information to owners at that stage. The assessment procedures will also influence any standard form the local authority chooses to produce.
3.46. The following paragraphs look at:
- legislative requirements;
- joint maintenance plans - apportionment of liability;
- joint maintenance plans - management of implementation;
- "reasonable standard"; and
- other things the local authority might look for when assessing the plan.
Legislative requirements
3.47. The Act sets out minimum requirements for a maintenance plan. For the authority to approve a maintenance plan, the plan must set out:
- what maintenance is needed,
- what steps are to be taken to achieve this;
- when these steps are to happen; and
- an estimate of the costs.
3.48. When assessing the maintenance and steps which the plan sets out, the local authority should take account of the fact that the plan should secure the maintenance of the property to a reasonable standard (see also 3.61-3.66).
3.49. The local authority will need to consider how it will assess whether the estimate of costs is realistic. For example, this might require owners to have some level of input from professionals or contractors. Or, the local authority could provide information to owners on likely costs. It could do this by providing a sample list of charges, or sign-posting owners to other agencies who could provide this, such as the Royal Institute of Chartered Surveyors ( RICS).
3.50. The local authority should also note that it can only approve a joint maintenance plan if the majority of owners have agreed to it. So it will need to satisfy itself that this is the case.
Joint maintenance plans - apportionment of liability
3.51. Joint maintenance plans must also deal with the apportionment of costs. The local authority cannot approve a joint plan if the apportionment of costs or responsibility goes against anything in the title deeds, development management scheme ( DMS) or tenement management scheme ( TMS).
3.52. The local authority will have to decide how it will deal with this requirement. It might be costly and time consuming for the local authority to research these elements for each joint maintenance plan it receives. So it might decide that it is sufficient to advise owners of this requirement, and to ask them to provide proof that they have checked that their plan does not breach these provisions.
3.53. Owners should contact their own lawyers for information on their title deeds. Citizens Advice Bureaux may be able to help owners to understand the deeds where they have a copy of them. Property managers (where applicable) might also be able to advise owners on the appropriate split of liability.
3.54. The authority might also wish to advise owners of the Communities Scotland publication Common Repairs Common Sense for more information on the TMS.
3.55. The local authority should seek its own legal advice on what level of evidence it should require before approving the plan.
Joint maintenance plans - management of implementation
3.56. The Act allows joint maintenance plans to require the appointment of a person to manage the implementation of the plan. But it does not say that this is mandatory for all joint maintenance plans.
3.57. The local authority will need to consider how it will assess this element of plans. There is no requirement in the Act for owners to appoint someone, but in practice the authority may decide to reject joint maintenance plans which do not. It should ensure that it tells owners at the point of drafting a maintenance plan if it will assess joint plans in this way.
3.58. The local authority will also want to think about (and advise owners of) how it will assess the suitability of any person or company which a plan appoints. It may be necessary to do this on a case by case basis. There is currently no accreditation scheme for property managers, although the Scottish Government is looking into the possibility of introducing a voluntary accreditation scheme.
3.59. The local authority may find it useful to sign post owners to Common Repairs Common Sense for more information on their rights to appoint property managers. Another useful source of information might be the Property Managers Association Scotland ( PMAS).
3.60. If the local authority is willing to approve plans which appoint an individual to manage the implementation of the plan, it should make it clear what qualifications or experience it expects that person to have. The local authority might wish to consider offering training for owners who wish to take on this role.
Reasonable standard
3.61. The purpose of the maintenance plan is to secure the house to a "reasonable standard". So local authorities will want to be satisfied that the plan will do this before it approves it.
3.62. As with the good practice around the maintenance order, it will be important for the local authority to clearly state to owners what it considers to be a "reasonable standard". If it provides this information when it serves the maintenance order, owners are more likely to be able to prepare a plan which is appropriate.
3.63. It is likely that the local authority will want to consider "reasonable standard" in terms of the condition of other properties in the area. This might include looking at other initiatives where properties are being maintained. For example, local authorities or local housing associations might own properties in the area which are subject to cyclical maintenance programmes. It might be appropriate to consider similar measures for private owners who have received maintenance orders.
3.64. But just because this standard applies to housing association properties does not guarantee that it will be "reasonable" in the context of these powers.
3.65. Alternatively, the local authority might want to draw up a new framework in relation to maintenance plans. But again, it will want to check that this is "reasonable" if this means that it is requiring private owners to maintain their properties to a much higher or lower standard than other tenures.
3.66. The local authority should not consider the situation of the owner when it sets out a framework for what will be a reasonable standard. It should deal with this through its Scheme of Assistance (if applicable), or other support which it offers to owners.
Other things the local authority might look for when assessing the plan
3.67. The local authority may wish to consider what else it will be looking for in the maintenance plan. Again, it should take account of these if producing a template, and should ensure that owners are aware when it serves the maintenance order that it intends to assess these criteria.
3.68. For example it may wish to consider:
(i) what parts of the house the maintenance plan includes;
(ii) how often the plan requires action;
(iii) whether there should be technical input to drafting the plan; and
(iv) the level of detail in the plan.
3.69. Owners can appeal against the authority's decision to approve or devise a maintenance plan (for more information see Annex D Appeals). So the authority will want to bear this in mind when setting out its policies for assessing maintenance plans, if its assessment goes beyond the minimum requirements of the Act.
(i) What parts of the house the maintenance plan includes
3.70. The local authority will need to make it clear to owners what it expects the plan to cover. For example, the plan could:
- cover only those elements which triggered the maintenance plan; or
- cover all aspects of the house (possibly with priority given to the trigger areas in the short term).
3.71. The benefit of the first option is that the maintenance plan will focus on the elements of the property which owners have failed to maintain. Owners might be more likely to stick to a plan if they can see that each action will rectify something which they have not been maintaining. The plan would not place additional burdens on owners in relation to other elements of the property which they were already maintaining, or which were already in a reasonable standard.
3.72. On the other hand, the second option might be more appropriate in terms of ensuring that the house is maintained to a reasonable standard (which is the purpose of the maintenance plan). The local authority could produce a template for the plan containing a checklist of each element of the house which it expects owners to maintain.
3.73. In either case the local authority will want to consider whether its intervention is proportionate. For example, it might not be appropriate to issue a maintenance order requiring a plan for every element of the house if the only problem initially was that the garden was overgrown.
(ii) How often will the plan require action?
3.74. Whatever the scope of the plan, the local authority will want to consider how often it wants the plan to look at each element. Some elements might require an assessment or action more frequently than others.
3.75. The plan should set out routine maintenance over the period it covers. But there may be advantages in building in flexibility to take account of other things, for example including additional assessments of the property after storms.
3.76. The local authority will also want to consider how it will monitor the implementation of the maintenance plan. For example, it may be more practical for it to monitor annual targets rather than quarterly ones (see also paragraphs 4.25-4.34 which look at monitoring of the plan).
(iii) Should there be technical input to the plan?
3.77. The local authority might decide that it will be easier to assess the suitability of plans if it requires that they are produced with input from technical professionals. If so, it will want to consider whether it will be looking for those professionals to have minimum qualifications, or similar. Again, it should inform owners at the point of the maintenance order if it is taking this approach.
3.78. But it should be aware that there is nothing in the Act which requires owners to use professionals to produce the plan. Owners could appeal against the authority's decision to reject a maintenance plan on this (or other) grounds.
3.79. The authority will also want to consider that owners will face upfront costs in producing the plan if they have to use technical professionals to do this. This might act as a disincentive to submitting plans . And the authority should think about whether there are any problems with requiring professional input to the drafting of maintenance plans if there is a known shortage of such professionals in the area.
3.80. To help with the assessment of plans submitted without technical input, the local authority may wish to provide a checklist of elements which the plan is to cover for owners to complete. It could adapt this depending on what approach it takes in terms of what is included in the plan (as paragraphs 3.70-3.73). For example, if the plan was to cover the whole house, this could highlight the elements which triggered the maintenance order for particular attention.
3.81. Where there are property managers or factors, it would be good practice for the local authority to encourage owners to involve them in the production of the plan. They are also likely to have an integral role in the implementation of the plan.
(iv) The level of detail in the plan
3.82. The authority should also make it clear how detailed it expects the plan to be. For example, it might decide to only approve plans which:
- set out an assessment of each element of the house, with information on what in particular should be done, and when; or
- include timescales on when each element should be looked at.
3.83. For example, the maintenance plan could include an entry for "roof". The first option might be "maintain the roof in August each year by doing x, y and z", based on a report from a surveyor which the owners had commissioned. The second option might be for it to say "commission a report in August each year to assess the state of the roof and any work needed to it; and carry out that work as necessary".
3.84. The benefit of this second option is that it would be a way to offset the costs until after the plan was in place. It might also enable the plan to be more flexible in responding to the actual state of the property at the time of each assessment.
3.85. Ultimately the aim of the plan is to maintain the property to a reasonable standard. The local authority should consider how much flexibility it wishes to give owners in terms of how they set up their plan to achieve this.
Who will assess the plan?
3.86. This may vary between authorities, but it is likely that the same staff and/or department who issued the maintenance order will be assessing the maintenance plan. They may also be the people who will be monitoring the implementation of the plan, and any necessary enforcement (see Chapter 4 Carrying Out The Maintenance Plan) .
3.87. The benefit of this approach is that staff will be familiar with the reasons why the local authority thought there was a problem with the house, and so may find it easier to assess the suitability of the plan. But it also means there may be heavy workloads for staff, which local authorities will wish to be aware of. Authorities should also consider whether they need to take any steps to avoid any concerns of there being a conflict of interest.
3.88. Local authorities might also involve colleagues with specific technical knowledge. This will depend on the information which the maintenance plan provides, but might be appropriate if, for example, there is a question over whether the maintenance which the plan sets out will maintain the house to a reasonable standard.
When the local authority does not approve the plan
3.89. The local authority might take the view that the maintenance plan does not meet the requirements under the Act.
3.90. In this situation the authority can modify it and then approve it, or it can reject it. The local authority will want to ensure it has a clear framework for deciding how to deal with plans in this situation.
3.91. If it rejects the plan, the authority can substitute a plan of its own devising, or it can serve a new maintenance order. Again, it will be up to the local authority to determine what the most appropriate route is.
What happens if the owner does not submit the maintenance plan by the date set out in the maintenance order?
3.92. The local authority can devise a maintenance plan for the house once the date for submission has passed.
Devising the plan
3.93. Local authorities will need to decide how they will devise maintenance plans for houses where owners have not submitted plans, or where the plans they have submitted are unsatisfactory.
3.94. Authorities should ensure that the plan they produce would be approved if an owner had submitted it - that is to say, they should make sure it fulfils the legislative obligations set out in the Act (as paragraph 3.47), and will maintain the house to a reasonable standard.
Who will devise the plan?
3.95. Local authorities might wish to outsource the drafting of maintenance plans, for example if there are particular resource issues such as staff availability or expertise. They might decide that plans should be drawn up by professionals with skills which are not available in-house.
3.96. But if they do so, they will want to think about what they have asked owners to produce if they provided them with a template. For example, will the local authority be requesting professionals to draw up their plans, whereas individual owners can use a checklist?
3.97. They may wish to ensure that they have transparent reasons for producing a different type of plan if this is the case.
3.98. There will be costs in devising the maintenance plan. Chapter 4 (Carrying Out The Maintenance Plan) and Annex E (Recovery Of Expenses And Repayment Charges) look at the powers of local authorities to recover costs from owners. But these powers only extend to expenses the local authority incurs in implementing a maintenance plan.
Will owners see the local authority devising the plan as the easy option?
3.99. It is the owner's responsibility to produce a maintenance plan.
3.100. The local authority is likely to minimise the number of plans it has to devise itself if it provides sufficient information and support to owners, and also if it decides to produce a template for the plan which is easy for owners to use.
3.101. The local authority might choose to offer a service of producing a maintenance plan on the owner's behalf. For example, it might offer this as part of its Scheme of Assistance. The emphasis of the new powers is that it is the owner's responsibility to maintain his or her property, so the local authority will want to consider any presentational implications of offering to take on this role for owners.
3.102. In all cases the local authority should give owners the opportunity to produce the plan themselves in the first instance.
What else does the local authority have to do to use maintenance plans?
Notice
3.103. The local authority must notify owners when it decides to approve, reject, vary or revoke a maintenance plan. So it should ensure that it has arrangements in place to serve notice to owners once it has made its decision.
3.104. The notice must include a copy of the maintenance plan, except where the authority has approved the plan without modifications. But it would be good practice to include a copy of the plan in any case.
3.105. This means that the local authority cannot serve notice on the owner until it has modified or devised the plan. But the local authority should still ensure that it notifies the owner of its decision as soon as possible.
Registration
3.106. The local authority must register any maintenance plan which it approves or devises.
3.107. The good practice for registering maintenance orders, as set out in paragraphs 2.58-2.64, will also apply to maintenance plans. In particular, local authorities should look at the good practice around:
- waiting for the end of the period for appeal (or for any appeal to be finally determined) before registering; and
- existing arrangements for registering.
3.108. Again, it will be important for the maintenance plan to correctly identify the property. The local authority or owner should be able to copy this across from the maintenance order.
Appeals
3.109. Owners can appeal against the decision to approve or reject a maintenance plan, or to vary or modify it. For example, this might happen if the local authority has approved a joint maintenance plan, but one of the owners does not agree to it.
3.110. Since decisions will be open to challenge, it is important that the process for assessing maintenance plans is clear and transparent.
3.111. Annex D provides more information on the appeals process.
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