2001 ASP 10

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HOUSING (SCOTLAND) ACT 2001

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EXPLANATORY NOTES

INTRODUCTION

1. These Explanatory Notes have been prepared by the Scottish Administration in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by the Parliament.

2. The Notes should be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or schedule, or a part of a section or schedule, does not seem to require any explanation or comment, none is given.

BACKGROUND AND OVERVIEW

3. The Housing (Scotland) Act carries forward the proposals for legislative change which were set out in the Scottish Executive's consultation paper Better Homes for Scotland's Communities - the Executive's Proposals for the Housing Bill, which was published in July 2000. The Act contains provisions covering a number of areas relating to the Executive's overall policy objectives for housing, including provisions in relation to homelessness, tenancy rights, regulation of the socially rented sector, and the roles and responsibilities of the Scottish Ministers, local authorities, Scottish Homes and other bodies. The Act builds on the existing legislative framework, the majority of which dates back to the 1980s. The Housing Associations Act 1985, the Housing (Scotland) Act 1987 ("the 1987 Act") and the Housing (Scotland) Act 1988 ("the 1988 Act") are the main pieces of legislation amended or affected by this Act. The provisions in the Act will in the main impact most directly on the socially rented sector, but the Act also provides a framework for addressing issues across all housing tenures.

4. The Act is divided into 7Parts, some of which are subdivided into Chapters, as follows:

• Part1:     Homelessness and allocation of housing

• Part2:     Tenants of social landlords

• Chapter 1:     Scottish secure tenancies

• Chapter 2:     Right to buy

• Chapter 3:     Tenant participation

• Part3:     Regulation of social landlords

• Chapter 1:     Registered social landlords

• Chapter 2:     Local authority housing management

• Chapter 3:     Common provisions

• Chapter 4:     Interpretation of Part 3

• Part4:     Scottish Homes

• Part5:     Strategic housing functions

• Part6:     Grants for improvement, repairs etc

• Part7:     Miscellaneous and general

PART 1 - HOMELESSNESS AND ALLOCATION OF HOUSING

Section1:     Homelessness strategies

5. This section requires every local authority, when required to do so by the Scottish Ministers, to carry out an assessment of homelessness in its area and to prepare, and submit to the Scottish Ministers, a strategy for preventing and alleviating homelessness in its area. Subsections(2) and (3) allow Ministers to make requirements or give guidance on various aspects of preparing assessments or strategies. Homelessness strategies must state how the local authority is to comply with its equal opportunities duties so far as relating to matters in the strategy. Subsection(6) provides for the revision of the strategy, which may be undertaken by the local authority itself at an appropriate time or, as the case may be, under direction from Ministers.

Section2:     Advice on homelessness etc.

6. This section requires every local authority to ensure that advice and information about homelessness, the prevention of homelessness and services which may assist a homeless person or the prevention of homelessness is available free of charge. Local authorities are not required to provide this advice themselves. Subsection(2) enables the Scottish Ministers to issue guidance on the fulfilment of this duty.

Section3:     Homeless persons and persons threatened with homelessness

7. This section amends various sections of the 1987 Act, which set out local authorities' duties towards homeless people and people threatened with homelessness.

8. Subsection(1)(a) amends the definition of homelessness in the Housing (Scotland) Act 1987 Act to ensure that people who have accommodation outwith Scotland, England and Wales are not automatically assessed as being homeless, by widening the reference so that a person is treated as being homeless if he/she has no accommodation in the United Kingdom or elsewhere. Subsection(1)(b) amends section24(3) of the 1987 Act to ensure that people who are owed a duty under section31(2) are to be treated as being homeless if they are provided with accommodation which is not permanent accommodation. A definition of permanent accommodation is inserted into section 24 of the 1987 Act by subsection(1)(d). This means that a local authority's duty under section31(2) continues until permanent accommodation is secured. Permanent accommodation is defined in broad terms in this section to acknowledge a range of situations, some of which may not be secured by a local authority, but which could reasonably be considered to be permanent accommodation and, therefore, end the local authority's duty under section31(2). Subsection(1)(c) amends section24(4) of the 1987 Act to provide that a person is threatened with homelessness if it is likely that they will become homeless within 2months.

9. Section29 of the 1987 Act places an interim duty on local authorities to accommodate people who they have reason to believe are homeless and have a priority need. Subsection(2) amends section29 to make this an interim duty to accommodate anyone whom they have reason to believe is homeless, without taking into account whether they are likely to be in priority need.

10. Subsection(3) makes amendments to section31 of the 1987 Act, which sets out local authorities' duties towards homeless people. Section31(2) is amended to require local authorities to secure that the accommodation made available for unintentionally homeless people in priority need is permanent accommodation which includes a Scottish secure tenancy or an assured tenancy (but not a short assured tenancy) or, where a person has a record of anti-social behaviour, a short Scottish secure tenancy. This definition of permanent accommodation is narrower than the definition contained within section24 in order to acknowledge the types of accommodation which local authorities can secure. Section31(3) is amended to remove the distinction between intentionally homeless people in priority need and homeless people not in priority need and to enable the Scottish Ministers to prescribe what type of advice and assistance should be provided in those cases. The amendment to section31(3) makes section31(4) redundant and so that subsection is repealed.

11. Subsection(4) makes amendments to section32 of the 1987 Act, which sets out local authorities' duties towards people threatened with homelessness and provides a definition of accommodation. Subsection(4)(a) amends section32(3) of the 1987 Act to enable the ScottishMinisters to prescribe the type of advice and assistance which should be provided to people threatened with homelessness. The wording of section32(3) of the 1987 Act is also amended to match the amended wording of section31(3), although this does not change the effect of this section.

12. Subsection(4)(b) amends section32(5) of the 1987 Act to ensure that accommodation referred to in sections 31 or 32 does not include accommodation which does not meet any special needs of the applicant or other members of their household or is not reasonable for the applicant to occupy. Subsection(4)(c) sets out the arrangements which will apply to the regulations on types of advice and assistance made under sections 31 and 32 of the 1987 Act. It also requires local authorities to have regard to the best interests of any dependent children of the applicant when providing advice and assistance under section31 or 32.

13. Subsection(5) inserts section32A into the 1987 Act. Section32A(1) enables the Scottish Ministers to define the situations in which accommodation which is not permanent can be secured for unintentionally homeless people in priority need. This power could be used, say, to specify where temporary accommodation may be provided as an interim measure. It also enables Ministers to prescribe circumstances in which accommodation which does not meet the special needs of the applicant and their household may be secured. Section32A(2) makes clear that, when interim accommodation is secured in these circumstances, the homeless applicant cannot be subsequently reassessed as being intentionally homeless from that accommodation.

14. Subsection(6) makes a number of minor changes to section34 of the 1987 Act to ensure that accommodation secured under this section must be permanent and as suitable as other accommodation secured under the 1987 Act.

Section 4:     Review of decisions

15. This section establishes a right to a review on homelessness decisions and makes provisions about the main procedural matters.

Section5:     Duty of registered social landlord to provide accommodation

16. Subsection(1) enables local authorities to request a registered social landlord (RSL) which holds accommodation in the local authority's area to provide accommodation for an unintentionally homeless person in priority need. Subsection(2) requires local authorities, before making such a request, to consider the availability and appropriateness of any accommodation in their area. This duty will have no effect on local authorities which hold no housing stock, but will provide a safeguard against local authorities who hold stock making inappropriate requests to registered social landlords. Subsection(3) requires registered social landlords to comply with a local authority request, within a reasonable period, unless there is a good reason for not complying. Subsection (4) sets out that compliance with a request must be through the provision of accommodation secured by a Scottish secure tenancy, but where paragraph1 or 2 of Schedule6 are satisfied (that is, in relation to anti-social behaviour) a short Scottish secure tenancy is also permitted. Subsection (5) allows RSLs to provide other accommodation (say, temporary accommodation) in cases where that has been expressly requested by the local authority. Subsection (6) places a duty on RSLs to comply with reasonable requests for information relating to the local authority's functions under section 5. Subsection(7) enables the ScottishMinisters to give guidance on what constitutes a reasonable period for compliance; good reason for an RSL's non-compliance; and for the purposes of subsection (6) what is a reasonable request. Subsection(8) sets out the arrangements for consulting on such guidance.

Section6:     Duty of registered social landlord: further provision

17. This section sets out the arrangements which are to apply in the event of any dispute between a registered social landlord and a local authority about whether the registered social landlord has good reason for not complying with a local authority request. Subsection(1) requires that, if both parties cannot reach agreement within a set period (to be defined by the Scottish Ministers in subordinate legislation), they must appoint an arbiter. If there is no agreement on the appointment of an arbiter, Ministers must appoint an arbiter when requested to do so by the local authority. Subsections(4) and (5) deal with the sharing of costs of arbitration and the issuing of guidance by Ministers on the details of the arbitration process. Subsection(6) makes it clear that both registered social landlords and local authorities must comply with the arbiter's decision.

Section7:     Persons living in hostel and other short-term accommodation

18. This section enables the ScottishMinisters to make regulations to establish minimum rights for homeless people living in hostels and other types of short-term accommodation. Subsection(1) enables Ministers to specify the types of occupancy of accommodation to which these minimum rights will apply. Subsection(2) sets out a number of types of occupancy of accommodation which cannot be included in any regulations. Subsections(3), (5) and (6) enable Ministers to specify the terms of occupancy of the accommodation, including arrangements for appeals, but do not prevent additional agreements being made between the provider of accommodation and the occupier. Subsection(4) requires regulations under subsection(3) to include provision for a minimum period of notice, which may be waived when there is a serious danger to other occupiers or staff of the accommodation. Subsection(7) makes it a criminal offence for a provider of accommodation to fail to comply with the terms of the regulations. Subsection(8) sets out the consultation arrangements which would apply to the regulations.

Section 8:     Common housing registers

19. There is currently a voluntary framework for the establishment of common housing registers. This section provides Ministers with powers (to be exercised where appropriate) to instead require the establishment of common housing registers.

Section9:     Housing lists

20. This section substitutes a new version of section19 of the 1987 Act. Section19(1) will now extend a right to register on a housing list for accommodation held by local authorities or registered social landlords to anyone aged 16 or over. Section19(2) defines a housing list.

Section10:     Allocation of housing

21. This section amends section20 of the 1987 Act to provide additional criteria governing the operation of the housing list by a local authority or registered social landlord. Subsection(2) states that reasonable preference in allocations must be given to persons - among others - both homeless and threatened with homelessness. Subsection(3) sets out those factors which cannot be taken into account by a local authority or registered social landlord in making allocation decisions. Subsection (4) includes a list of the circumstances under which landlords can take account of age when allocating houses.

PART 2 - TENANTS OF SOCIAL LANDLORDS

CHAPTER 1 - SCOTTISH SECURE TENANCIES

Section11:     Scottish secure tenancy

22. This section specifies which tenancies are to be Scottish secure tenancies and makes provision for joint tenancies and for transition from existing tenancies to the Scottish secure tenancy.

23. The Scottish Ministers may make orders specifying the dates on or after which the tenancies of any prescribed landlord or description of landlord will be Scottish secure tenancies. This would enable all tenancies to convert at the same time, but allows for phased implementation where necessary. Such orders may (subsection(2)) include provisions to protect the rights of the landlord, the tenant or a third party (eg a person with a heritable security over the property) in relation to a tenancy which is converted to a Scottish secure tenancy. An order under that subsection could be used to protect the terms and conditions of the right to buy for existing tenants.

24. In general, a tenancy will only be a Scottish secure tenancy if:

• the house is let as a separate dwelling;

• the tenant is an individual and the house is the tenant's only or principal home; and

• the landlord is a local authority landlord (as defined in subsection(3)), a registered social landlord, or a water or sewerage authority.

• where the landlord is a registered social landlord which is a co-operative housing association, the tenant is a member of the association; and

• the tenancy was created on or after such date as specified by order or before that date if of a description specified by order

25. This section introduces Schedule1 which defines tenancies which could meet these general criteria but will nonetheless not be Scottish secure tenancies.

26. Subsection(8) provides that a tenancy which is a Scottish secure tenancy will continue to be one even where the landlord is no longer a local authority, a registered social landlord or a water or sewerage authority or where the house is no longer the only or principal home of the tenant, or where the landlord is a registered social landlord which is a co-operative housing association and the tenant is no longer a member of the association.

27. Subsections (5) and (6) make provisions for joint tenancies, including a requirement on a landlord to grant a joint tenancy, where it is requested in writing, unless it has reasonable grounds for not doing so. Subsection(9) protects the tenancy rights of those tenants who have been temporarily housed elsewhere.

Section12:     Restriction on termination of tenancy

28. This section sets out the six ways in which a Scottish secure tenancy may be terminated:

• by a court order for recovery of possession on one of the 15grounds in Part1 of schedule2 (under section16(2));

• where a tenancy has been abandoned (by operation of section18(2));

• on the death of a tenant, and subject to the provisions relating to succession (by operation of section22);

• on conversion to a short Scottish secure tenancy (by operation of section 35);

• by written agreement between the landlord and tenant;

• by 4weeks' notice given by the tenant to the landlord.

29. Subsections(2) and (3) provide security of tenure for a tenant who is being accommodated temporarily in another house while their own house is not available for occupation.

Section13:     Termination of joint tenant's interest in tenancy

30. Section 13 provides for the termination of a joint tenant's interest in the tenancy by 4 weeks notice given to the landlord and to each of the other joint tenants.

Section14:     Proceedings for possession

31. This section entitles a landlord under a Scottish secure tenancy to seek a court order for recovery of possession of a house. Subsections (2) to (5) specify the procedures which the landlord must follow in such circumstances, and include a power for the Scottish Ministers to prescribe the form of notice to tenants. Such a notice must be served on the tenant and any qualifying occupier and must include the ground on which the court order will be sought, which must be one of the 15grounds set out in Part1 of schedule2, and must be served at least 4weeks before the court order is sought. Subsection (6) defines "qualifying occupier" for the purposes of this section and section 15.

Section 15:     Rights of qualifying occupiers in possession proceedings

32. This section enables a qualifying occupier (defined in section14(6)) to play a part in possession proceedings, so that their rights as well as the tenant's rights may be considered by the court.

Section16:     Powers of court in possession proceedings

33. This section sets out the circumstances in which the court will make an order for terminating a Scottish secure tenancy and giving the landlord the right to recover possession of the house on a ground set out in Part1 of schedule2. In relation to grounds 1 to 7 ("conduct grounds") the court must make the order where it considers it reasonable to do so. In relation to grounds 8 to 14 ("management grounds"), the court must make the order if it considers other suitable accommodation will be available for the tenant. In relation to ground15, the court must make the order where it considers that it is reasonable to do so and that other suitable accommodation will be available. Suitability of alternative accommodation is determined by reference to Part2 of schedule2. In relation to ground 10, if the house is being redeveloped the court can make an order entitling the tenant to return to the house when the work has been completed.

34. This section also sets out the matters to which the court should have regard in considering whether it is reasonable to make an order for termination of the tenancy.

Section17:     Abandoned tenancies

35. This section enables a landlord under a Scottish secure tenancy to take action to secure and take possession of a house which appears to have been abandoned by the tenant. The procedures to be followed before taking possession are set out in section18.

Section18:     Repossession

36. This section sets out the procedures which must be followed by a landlord wishing to take possession of an abandoned house, in the circumstances defined in section17. The landlord must:

• give 4weeks notice in writing (subsection(1));

• make sufficient inquiries to satisfy itself that the house is unoccupied and that the tenant has no intention of re-occupying it (subsection(2)); and

• serve a further notice on the tenant (subsection(2)), which brings the tenancy to an immediate end and allows the landlord to take possession of the house without further proceedings.

37. Subsection(4) gives an order making power to the Scottish Ministers to outline arrangements for the securing of tenants' belongings in their absence and arrangements for their return or disposal.

Section19:      Tenant's recourse to court

38. This section gives a Scottish secure tenant whose house has been repossessed in accordance with the abandonment procedures in sections17 and 18 a right of appeal to the court. Where the court finds that the landlord acted wrongly or unreasonably it must order the tenancy to continue or direct the landlord to provide other suitable accommodation (as defined in Part2 of schedule2). Subsection (4) enables the court to make further orders in relation to cases where a tenant has successfully challenged an abandonment order, for example to instruct a landlord to forego rent due for the period of apparent abandonment.

Section 20:     Abandonment by joint tenant

39. This section enables a landlord under a Scottish secure tenancy to take action to bring to an end the interest of a joint tenant where that joint tenant appears to have abandoned the joint tenancy. The procedures to be followed before taking possession are set out in subsections(2) and (3). The landlord must:

• give 4weeks notice in writing (subsection(2));

• make sufficient inquiries to satisfy itself that the abandoning tenant is not occupying the house and does not intend to occupy it as the tenant's home (subsection(3)); and

• serve a further notice on the abandoning tenant (subsection(3)), bringing the abandoning tenant's interest in the tenancy to an end with effect from a date specified in the notice which must be not earlier than 8 weeks after the date of service of the notice.

Section 21:     Joint tenancies: abandoning tenant's recourse to court

40. This section gives a joint tenant a right of recourse to the court where the tenant is aggrieved by a landlord bringing to an end his interest in the property under the abandonment procedures in section 20. Where the court finds in favour of the tenant it can effectively reinstate the joint tenant or direct the landlord to make other suitable accommodation available. The court can also make a further order providing, for example, for compensation to be paid.

Section22:     Succession to Scottish secure tenancy

41. This section and schedule 3 make provision for succession to a Scottish secure tenancy on the death of the tenant. The section includes a right to a second round of succession (subsection(2)). Schedule3 defines who is a person qualified to succeed to a tenancy and the circumstances in which they can do so. A qualified person is, first, the tenant's spouse or cohabitee, or a surviving joint tenant; second, a member of the tenant's family aged16 or over; or, third, a carer who is providing, or who has provided, care for the tenant or a member of the tenant's family. The carer must be aged16 or over, and have given up his or her previous only or principal home, to be qualified to succeed. In all three cases the house of the deceased tenant must have been the only or principal home for the qualifying person.

42. Where a house has been designed or substantially adapted for the use of persons with special needs, then paragraph 5 of schedule3 specifies that only spouses, cohabitees, joint tenants or persons with special needs can succeed to that tenancy. Other persons who would otherwise be qualified to succeed have a right to alternative suitable accommodation by virtue of subsections(6) and (7).

43. Subsection(8) clarifies that tenancies are not terminated on the death of a joint tenant if the remaining tenant or tenants continue to live in the house. Subsection(9) makes provision for a person who would have succeeded to the tenancy, but who cannot because the second round of succession has passed, to remain in the house for 6months but not under a Scottish secure tenancy. Subsection(10) makes provision for a Scottish secure tenancy to continue (for the purposes of succession) where a tenant has to move to alternative accommodation.

Section23:     Tenant's right to written tenancy agreement and to information

44. This section gives tenants a right to a written tenancy agreement and to information about the landlord's policies and procedures. It permits the Scottish Ministers to issue guidance as to the form of the tenancy in a model agreement. Subsection(4) requires landlords to provide a prospective tenant with information, prior to the taking up of the tenancy, about the right to buy (this could include, for example, whether or not there are any relevant exemptions), and the obligations which the tenant is likely to incur if the right to buy is exercised (including responsibility for maintenance of parts of the building and areas owned in common). Subsection(5) requires the landlord to notify the tenant of any changes to the legislation, including subordinate legislation, governing the right to buy which might affect the tenant's right to purchase. Subsection(6) outlines information that the landlord must supply in relation to its complaints procedure. It also lists other information that it must supply on request.