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Implementing the Housing (Scotland) Act 2006, Parts 1 and 2: Advisory and Statutory Guidance for Local Authorities: Volume 4 Tolerable Standard

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Chapter 2 Tolerable Standard: Origin, Duty and Powers

Origin of the tolerable standard

2.1. The tolerable standard has been the principal measure of housing quality in Scotland for almost 40 years. The tolerable standard is a "condemnatory" standard; a house that falls below it is not acceptable as living accommodation. Local authorities have a statutory duty and specific powers to deal with houses that fall below the tolerable standard (" BTS"). We explain the duty and powers in this chapter.

2.2. The tolerable standard originated in recommendations from the 1967 Cullingworth Committee report "Scotland's Older Houses". The Housing (Scotland) Act 1969 ("the 1969 Act") introduced the tolerable standard, replacing the previous concept of houses classified as "unfit for human habitation". The Tolerable Standard is now set out in sections 85 - 87 of the Housing (Scotland) Act 1987 ("the 1987 Act"). Both the Housing (Scotland) Act 2001 ("the 2001 Act") and the Housing (Scotland) Act 2006 ("the 2006 Act") introduced changes to the tolerable standard. We explain these in this chapter.

2.3. Housing conditions have improved significantly since the late 1960s, and the number of houses that fail to meet the tolerable standard has declined. The Scottish House Condition Survey 2002 estimated that around 20,000 houses - or only 1% of the country's housing - failed to meet the tolerable standard. Local authorities have taken action to deal with thousands of individual BTS houses since the late 1960s. The tolerable standard has also been a catalyst for area regeneration, because local authorities have been able to take action by declaring Housing Action Areas where a majority of houses in an area fail to meet the tolerable standard.

Housing Improvement Task Force

2.4. The HITF considered whether the tolerable standard remained relevant more than 30 years after its introduction. It noted that as housing conditions have improved, so have the expectations of the levels of comfort that a house should provide. It concluded that a condemnatory standard which properly targets the worst conditions is an effective and transparent method of public intervention in a largely private market.

Definition

2.5. The tolerable standard consists of a set of criteria covering the elements of a house which are fundamental to its functioning as a home. The criteria address issues of public health, comfort and safety. The tolerable standard focuses only on the building itself, and does not extend to internal decoration, heating systems or other utilities in the house. The tolerable standard applies to houses of all tenures.

2.6. A house meets the tolerable standard if it:

  • is structurally stable;
  • is substantially free from rising or penetrating damp;
  • has satisfactory provision for natural and artificial lighting, for ventilation and for heating;
  • has satisfactory thermal insulation;
  • has an adequate piped supply of wholesome water available within the house;
  • has a sink provided with a satisfactory supply of both hot and cold water within the house;
  • has a water closet or waterless closet available for the exclusive use of the occupants of the house and suitably located within the house;
  • has a fixed bath or shower and a wash-hand basin, each provided with a satisfactory supply of both hot and cold water and suitably located within the house;
  • has an effective system for the drainage and disposal of foul and surface water;
  • in the case of a house having a supply of electricity, complies with the relevant requirements in relation to the electrical installations for the purposes of that supply;
    • "the electrical installation" is the electrical wiring and associated components and fittings, but excludes equipment and appliances;
    • "the relevant requirements" are that the electrical installation is adequate and safe to use
  • has satisfactory facilities for the cooking of food within the house; and
  • has satisfactory access to all external doors and outbuildings.

2.7. Most of these criteria have been part of the tolerable standard since its introduction in the 1969 Act. The 2001 Act 2 added the bath / shower and wash-hand basin element. Waterless closets were added by administrative order in 2003. The 2006 Act 3 introduces the most significant change to the criteria - the addition of thermal insulation and electrical installations, and also confirms the addition of waterless closets.

2.8. To meet the tolerable standard a house must comply with all the criteria. In other words, the assessment is a simple "pass" or "fail". If a house does not meet even one of the criteria, then it is BTS.

Local authority duty

Duty to deal with BTS houses

2.9. The 1987 Act 4 places a duty on every local authority to secure that all houses in their area which do not meet the tolerable standard are closed, demolished or brought up to the tolerable standard. This duty remains in force and subsequent legislation has not altered it. The Act does not restrict the duty to any specific tenure of housing.

2.10. The 1987 Act 5 requires local authorities to act within a period that is reasonable in all the circumstances. The Act does not define "reasonable" and does not specify "all the circumstances" local authorities should consider. In determining a reasonable period, the 1987 Act 6 does require a local authority to have regard to the alternative housing likely to be available for anyone who may need to move from a house because of the authority's action.

2.11. Local authorities have statutory powers to enable them to comply with this duty. We discuss these later in this chapter.

New local housing strategy duty

2.12. The 1987 Act 7 required local authorities to carry out a periodic survey or inspection of their area as necessary to allow them to perform their duty in respect of BTS houses.

2.13. The 2006 8 Act repeals this duty and introduces a new strategic duty for local authorities. The new duty extends the scope of local housing strategies ( LHS) 9. It requires local authorities to set out in their LHS a strategy for ensuring compliance with the duty to close, demolish or improve houses which do not meet the tolerable standard 10. The new BTSLHS duty is a significant change. It formalises the need for local authorities to adopt a strategic approach to dealing with BTS housing.

2.14. Separate guidance is available to assist local authorities with preparing their LHSs. 11 For authorities not due to submit their LHS until after April 2010, it would be advisable to produce an interim strategic statement on private housing. This would not need to be submitted to Ministers but would provide a clear understanding for partners and stakeholders, including relevant home owners, of the basis on which the authority makes use of enforcement powers, including its approach to dealing with BTS housing.

2.15. The 2006 Act does not specify what the strategy should contain. The content will be a matter for each local authority. But a successful strategy needs to be built around a clear understanding of the scale and nature of local housing quality problems. Our own research indicates that many local authorities do not currently have a thorough knowledge of private sector house condition 12. So, establishing reliable baseline information may be an important early step in developing the strategy. We have produced separate guidance, "Gathering the Evidence", as an annex to volume 1 "Preparing and Delivering" to assist local authorities to gather and manage house condition data effectively. This is relevant for staff across all the enforcement powers in the 2006 Act.

2.16. Local authorities will want to consider some specific issues around the scale and nature of BTS housing as they develop their LHS. These include:

  • the overall level of BTS housing across the area;
  • the pattern of change over time;
  • the reasons for failure;
  • spatial issues, such as clusters of failure in particular settlements or districts;
  • the characteristics of BTS housing across tenures and house types; and
  • the social impact of BTS housing.

2.17. Local authorities will also need to consider a number of policy issues when drafting their LHS. Some will be specific to individual local areas. But there are also considerations that will apply to each authority; we have summarised some of these below.

  • Reasonable period: authorities have a duty to take action against all BTS houses in a reasonable period. It is for each authority to decide what is reasonable in its local context and to prioritise its actions.
  • Level of BTS housing: the level of BTS housing varies significantly from authority to authority. Some authorities will need to adopt a long-term approach to taking action on existing BTS houses; others may be able to deal with all houses which are currently BTS in a relatively short time. But all authorities will need to make decisions about prioritising their actions.
  • Policy fit: broader housing or corporate objectives may influence how authorities prioritise action to deal with BTS houses. For example, an authority may have specific initiatives aimed at dealing with problems that overlap with the tolerable standard, such as testing private water supplies. This might mean that, in the short to medium term, authorities will prioritise action on specific types of BTS failure.
  • Targeting the worst conditions: authorities should prioritise their activities in a way that targets action on the worst housing conditions that have the greatest impact on occupants and the local community. It will be important to have a consistent method of recording each house that does not meet the tolerable standard. Authorities should also have a transparent and defensible approach to prioritising assistance and statutory action.
  • Resources: authorities should base their strategies on a realistic assessment of the staff and funding available to support implementation.
  • Co-ordinated approach: local authorities should not develop the strategies for dealing with BTS housing in isolation from the rest of the 2006 Act. The Act offers local authorities a number of routes to taking statutory action to address a range of housing quality issues. It also gives local authorities wide-ranging, flexible powers to assist owners to improve and repair their houses. It is important that authorities have a good understanding of the options open to them and the relationship between the provisions in the Act.

Local authority powers

2.18. Under the 1987 Act, the failure of a house to meet the tolerable standard was a trigger that allowed a local authority to take statutory action to improve, close or demolish a house. This is the power that enables an authority to fulfil the statutory duty set out earlier in this chapter.

2.19. The tolerable standard remains as one of the triggers for taking statutory action to deal with poor quality housing, although the 2006 Act introduces changes to existing local authority powers. The 2006 Act widens the circumstances in which local authorities can use statutory enforcement powers to deal with poor quality housing. It also replaces the existing repair notices and improvement orders with a new power to serve a work notice. In addition, it replaces the existing housing action area power to take action on an area basis with a more flexible "housing renewal area" ( HRA) power.

2.20. Housing staff whose your role involves working with enforcement powers will want to understand the tolerable standard in the context of these changes. Our guidance on HRAs, repair, improvement and demolition provides detailed information on the situations where local authorities can take enforcement action. It also explains the changes from the 1987 Act powers.

2.21. The powers set out in the 2006 Act are not the only route available to local authorities for taking action on house condition issues. Depending on the situation, authorities may be able to use environmental health or building standards powers as an alternative to housing legislation or, for example, to achieve improvements to rented housing through private landlord registration. Authorities will want to consider, on a case by case basis, what is the most appropriate response.

2.22. As a general rule it is preferable that the owner should carry out necessary works on a voluntary basis rather than as a result of enforcement action. It may be that the condition of a house results from a lack of knowledge or awareness, a lack of capacity or some other barrier that prevents the owner proceeding. Local authorities' powers to give assistance are more wide-ranging and flexible than they have been in the past, and if they can be used to remove such barriers, they should. If your role includes the use of enforcement powers, you should establish strong working relationships with colleagues dealing with assistance to ensure that enforcement is not used when assistance will achieve the objective without it.