The Housing (Scotland) Act 2014 (the Act) is part of the Scottish Government's 10-year action plan for social housing and will bring about significant changes for social landlords.
It has been over three years since the Act was passed by the Scottish Parliament. Local authorities and housing associations have been waiting patiently to hear when the significant bulk of this new legislation will come into force. It appears that the wait is almost over and that most of the key provisions will be brought into force by the Scottish Government later this year.
The Scottish Government has released draft guidance for social landlords on the key Scottish secure tenancy (SST) related changes in the Act, including on:
- Legal Framework for Social Housing Allocations;
- Short SSTs for Homeowners;
- Assignation, Subletting, Joint Tenancies and Succession to a SST;
- Streamlined Eviction Process – Criminal or Anti-social Behaviour; and
- Recovery of Possession of Properties Designed or Adapted for Special Needs.
The Scottish Government has indicated that it intends to bring into force the statutory provisions on these matters by the end of 2017, but there has been no Commencement Order forthcoming as yet. Before the changes are introduced, new forms of notices (such as the notice of proceedings form) will require to be published and it is expected that the Scottish Government will also release a new version of the model SST (and short SST).
In anticipation of the SST-related changes coming into force shortly, social landlords should look ahead and review their current policies and procedures to ensure that they are compliant with the Act when the time comes. It is important that social landlords are proactive to these changes to minimise disruption to the organisation and to prepare their staff for what is coming.
Below, we have summarised below the key changes due to come in to force this year.
Social Housing Allocations
- The previous list of persons to whom social landlords must give reasonable preference in the allocation of housing will be repealed and replaced by the following list:
(a) homeless persons and persons threatened with homelessness and who have unmet housing needs;
(b) people who are living under unsatisfactory housing conditions and who have unmet housing needs; and
(c) tenants of houses which are held by a social landlord and which the social landlord selecting its tenants considers to be under-occupied.
- Social landlords will be required to undertake a consultation process before making or altering their allocations policies.
- Social landlords will be permitted to take into account an applicant's ownership, and value of, heritable property for the purposes of housing allocation, except in certain circumstances, such as where occupation of the property will lead to abuse or endanger the health of the occupants.
Short SST for homeowners
The Act allows social landlords to grant a short SST to homeowners who cannot occupy their home on a short term basis. For example, if an owner needs to move out while repairs are carried out to make the home safe. This provides a further safety net for homeowners who may be in genuine housing need given that the Act will allow social landlords to take home ownership into account when allocating homes.
Assignation, subletting, joint tenancies and succession
- The Act introduces a qualifying period of 12 months for a tenant to add a new joint tenant to their tenancy, or to assign or sub-let their tenancy and requires the joint tenant to have notified the landlord that they are residing in the property before that qualifying period.
- Section 12 of the Act enables the landlord to refuse consent to an assignation or sub-let where the landlord would not have given reasonable preference to the proposed assignee or sub-tenant in the allocation of a tenancy or where it would result in the property being under-occupied.
- The Act also introduces a 12 month qualifying period for co-habiting partners (increased from 6 months), family members and carers succeeding to a tenancy.
- Streamlined evictions for criminal offences
- Section 14 removes the 'reasonableness' test in actions for recovery of possession raised on the grounds that the tenant has been convicted of using the house for immoral or illegal purposes or an offence punishable by imprisonment committed in, or in the locality of, the house within the past year, which could include breach of an ASBO or drugs offences.
Short SST for anti-social behaviour
- Social landlords are able to create a short SST where applicants have acted in an anti-social manner within the last three years.
- The minimum term of a short SST is extended from six months to one year, with the possibility of further six month extensions if further tenancy support is required.
- Where the landlord is seeking to terminate a short SST, it will require to notify the tenant of the reason for the termination and the tenant will have the opportunity to ask the landlord to review its decision.
- Section 7 allows social landlords to introduce a suspension period for housing applications in circumstances where the applicant has acted in an anti-social manner in the locality of their house or towards an employee of the social landlords in the course of making the application.
- The suspension period can also be used in other circumstances, such as where the applicant has been convicted of an offence committed in the locality of their house, owes rent or has been evicted from a previous tenancy.
Recovery of properties designed or adapted for special needs
- The legislation previously only allowed recovery of possession of an adapted property where there was "no longer" an occupier who required the adaptation, which was problematic for social landlords who wanted to recover possession of an adapted property which never had an occupier who required the adaption. Section 15 of the Act removes the words "no longer" to allow recovery where no occupier required the adaptation in the first place and the property is required for a person who needs the adaptation. The requirement that the tenant and their family to be provided with alternative suitable accommodation will remain in place.
So is the Housing (Scotland) Act 2014 finally here? The short answer is ‘not quite yet’, but it is important that social landlords' internal policies and procedures and its staff are prepared for when it does come into force.
Get in touch
Any social landlord which requires assistance in reviewing its policies and procedures or training on the 2014 Act should contact Collette Miller, Associate in our Public Sector and Social Housing Team.