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Part 3 - Matters arising from implementation of local authority powers in the Housing (Scotland) Act 2006
Maintenance Powers
26. The Housing (Scotland) Act 2006 gives local authorities new powers to take action to deal with the condition of properties before they fall into serious disrepair. The authority can serve a maintenance order requiring the owner (or owners) to prepare and submit a maintenance plan to secure the maintenance of the property to a reasonable standard over a set period.
27. Where the owner does not submit a maintenance plan by the date specified in the maintenance order, or submits one which is unsatisfactory, the local authority can devise a plan itself.
28. Local authorities have powers to recover from the owner the costs associated with implementing a maintenance plan where the owner fails to carry out the work, but there is no provision to charge owners for preparing a maintenance plan in default. Feedback during consultation on draft guidance to support the implementation of this aspect of the 2006 Act suggested that local authorities felt this may mean that there is no incentive for owners to prepare plans themselves.
Question 3.1: Where a local authority prepares a maintenance plan because the owner has (or owners have) failed to submit a satisfactory plan by the date specified in the maintenance order, do you consider that the authority should be able to charge the owner (or owners) the cost of doing so?
29. Section 61 of the 2006 Act requires that the local authority register (among other things) each
- maintenance order;
- maintenance plan approved, devised or varied; and
- notice of a revocation of a maintenance plan
in the appropriate land register. This ensures that potential and future owners are aware of the continuing obligation to comply with the order or plan while it remains in force.
30. There is no provision in the 2006 Act to pass on the cost of each of these registrations to the owner.
31. Local authorities can only issue a maintenance order requiring a maintenance plan where there is evidence that a property has not been, or is unlikely to be, maintained to a reasonable standard. The purpose behind this power is to encourage owners to take responsibility for looking after their own properties. The registration costs arise from the local authority's taking action against owners of properties where the local authority considers that there has been a lack of maintenance for which the owner (or owners) is (or are) responsible and it may be reasonable that they should be met by that owner and not from the public purse.
32. Section 84 of the 2006 Act requires the owner of a house who receives a grant or loan to meet the local authority's expenses in registering the conditions of the grant or loan. This is not a direct parallel as it results from the owner's request for a grant or loan. If provision is made to recover registration expenses in relation to maintenance powers, it may be appropriate for the authority to be able to decide in each case whether the owner is obliged to pay.
Question 3.2: Do you consider that local authorities should have powers to charge owners their expenses in registering documents relating to maintenance? Should this apply to all the documents mentioned in paragraph 29 above, or only some?
33. Owners who share with others a responsibility for maintaining common parts may establish a maintenance account, whether or not in connection with the local authority's use of its enforcement powers. Section 50 of the 2006 Act gives local authorities new powers to pay in missing shares to a maintenance account on behalf of owners where -
- the owner is unable to comply with the requirement to pay;
- it is unreasonable to expect the owner to pay; or
- the owner cannot be identified or found, despite reasonable inquiry.
34. This power does not extend to situations where owners are unwilling to pay, on the basis that this could undermine the intention that owners should take responsibility for maintenance work. In addition, owners do have recourse through the courts to pursue non-paying owners.
35. However, feedback through the consultation on draft guidance and other discussions has suggested that some local authorities would like to have the ability to pay missing shares in respect of an unwilling owner (and then recover those costs), where maintenance work is being prevented from going ahead only on account of that missing share. Without this power, the only route available to the local authority to ensure that work is carried out in these circumstances may be to make a maintenance order under the 2006 Act, enforce the subsequent maintenance plan by carrying out the work itself and then recover the costs from all owners.
Question 3.3: Do you consider that the situations in which local authorities can pay a missing share into a maintenance account should be extended to include situations where an owner is unwilling to pay?
Charging Orders and Repayment Charges
36. The Housing (Scotland) Act 1987 includes powers for local authorities to make charging orders to recover maintenance, repair and improvement costs incurred in various ways in terms of that Act, by means of a charging order. Part 7 of the 2006 Act contains broadly similar provisions for repayment charges, but in relation to costs incurred in terms of the 2006 Act.
37. Under section 111(d) of the 1987 Act, a person aggrieved by a charging order has a right of appeal. The 2006 Act includes a repeal of this section, although that repeal has not yet been commenced.
38. Charging orders can be issued in a variety of situations, including some where owners do not have a previous opportunity to appeal against steps that have led to their liability for the cost. We wish to restore the right of appeal against charging orders under the 1987 Act to the primary legislation.
39. We are not proposing to introduce a similar right of appeal against repayment charges under the 2006 Act, as owners can appeal against the decision that leads to the local authority incurring the costs, or against the decision to incur costs itself, in all but one of the circumstances where repayment charges can be issued. Where a repayment charge is issued to recover the costs incurred in enforcing a work notice, the owner has a right of appeal against that decision under section 64 of the 2006 Act. And where a repayment charge is issued to recover the costs incurred in enforcing a maintenance plan, the owner has already had the opportunity to appeal at various stages against the maintenance order and maintenance plan which are being implemented, again under section 64. The only situation where an owner does not have a right of appeal ahead of the issuing of a repayment charge is where the local authority pays a missing share into a maintenance account, when it is acting at the request of the majority of owners and after they have taken prescribed procedures to give the owner concerned the opportunity to pay the missing share.
Question 3.4: Do you support the restoration of the right of appeal against charging orders?
40. Repayment charges, and the discharge of repayment charges, must be registered in the appropriate land register in terms of section 172(4) and (6) of the 2006 Act. In line with our proposals at Q 3.2 above, we propose to allow local authorities to pass on the costs of registering these documents to owners.
Question 3.5: Do you support the proposal to allow (though not oblige) local authorities to pass on the expenses of registering repayment charges and discharge of repayment charges?
Enforcement powers
41. Under paragraphs 1 and 2 of schedule 1 to the 2006 Act, following public consideration local authorities must submit draft Housing Renewal Area ( HRA) designation orders to the Scottish Ministers, who can approve or reject the draft order. Under section 2 of the 2006 Act, an HRA designation order may not be made until the Scottish Ministers have approved a draft of the proposed order.
42. The power to designate HRAs replaces the power to designate Housing Action Areas ( HAAs) under the Housing (Scotland) Act 1987. Section 94 of that Act requires that the local authority submit a copy of an HAA draft resolution to the Scottish Ministers, who can choose to direct the local authority to rescind the resolution. The requirement for the Scottish Ministers to approve HRA designation orders reflected the provisions for HAAs in the 1987 Act.
43. However, since the 2006 Act was passed, the way in which local and central government work together has been significantly altered by the Concordat agreed between local government and the Scottish Ministers. The consultation published on 27 April 2009 in relation to the proposed Housing (Scotland) Bill, which makes provision on social housing issues, included a proposal to devolve the decision-making process on pressured area designations to councils, in keeping with the Concordat's broad aim of promoting accountability of local partners in achieving policy outcomes. It seems appropriate to take this opportunity to look again at the Scottish Ministers' role in the HRA process.
44. Local authorities have a new duty under the 2006 Act to set out a strategy for identifying areas for designation as HRAs within their Local Housing Strategy. Local authorities are therefore encouraged to take responsibility for planning strategically as to how to deal with the problems in their area, and are best placed to do so. There was no requirement for a specific strategy to underpin the designation of HAAs. Furthermore, whereas an HRA must be implemented through the issue of work and demolition notices, which owners can appeal, under the HAA system there was no such requirement for notices to be issued once an HAA was designated. Owners, lessees and occupiers could make representations to the council within two months from the date of service of the notice of the resolution to improve or demolish properties within the HAA, but there were no formal rights of appeal against work or demolition to be undertaken within an HAA unless a repair notice or demolition order was subsequently served, in which case there was a right of appeal in terms of sections 111 and 129 of the 1987 Act.
45. In the light of the differences from the HAA provisions and the principles of the Concordat we believe it would be appropriate to remove the requirement for Scottish Ministers to approve HRA designation orders. We would however continue to work with local authorities to support them and to share best practice in the introduction of the powers.
Question 3.6: What are your views on removing the requirement that Scottish Ministers must approve draft Housing Renewal Area designation orders before they can be made?
46. Section 71 of the 2006 Act allows local authorities to provide, or arrange for the provision of, assistance to a person in connection with work on any land or premises, with sub-section (2) elaborating on the purposes of that work. Demolition is not included under this power, and is explicitly excluded from the definition of "work" in section 194(1).
47. This is consistent with the 1987 Act where demolition was excluded from the grant provisions. But the 2006 Act's scheme of assistance is broader and includes a range of forms of assistance other than grant. We believe there is a case for extending part or all of the assistance powers to demolition.
Question 3.7: Do you consider that the situations in which local authorities can provide assistance under section 71 should be extended to include demolition? If so, do you think this should be restricted to non-financial assistance? Would this be demolition only in pursuit of demolition notices as part of an HRA, or demolition more broadly?
48. Local authorities have powers under Part 1 of the 2006 Act to require owners to undertake "work" to their properties, which is defined in section 194 as including maintenance, repair and improvement. Section 71 allows local authorities to provide assistance to owners in certain circumstances, which again includes improvement, repair and maintenance of houses.
49. "Improvement" is not defined in the 2006 Act but we would like to take the opportunity presented by this bill to make explicit on the face of the Act that improvement and work can include energy efficiency measures. This would confirm for local authorities that they can provide assistance in this connection and that a work notice, served on a house that is sub-standard, can include actions relating to energy efficiency. This approach is consistent with wider Scottish Government policy on climate change and the need to improve energy performance and reduce the emission of greenhouse gases wherever possible.
Question 3.8: Do you support the specific inclusion of energy efficiency measures in "improvement" and "work" in the 2006 Act?
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