Coronavirus Acts: fourteenth report to Scottish Parliament (August 2022)

7. Supplementary information

First Scottish Act

7.1.1 Section 2 and schedule 1 – Eviction from dwelling houses

Reporting on the status of eviction provisions and measures in place to protect tenants from eviction and any plans for further measures the Scottish Ministers propose to put in place to protect tenants from eviction.

7.1.1.1 Section 6(1) of the Coronavirus (Extension and Expiry) (Scotland) Act 2021 ("the 2021 Act") requires the Scottish Ministers to report on: the number of notices of proceedings issued to tenants in social housing as a result of rent arrears; the value of rent arrears in social housing; and the number of evictions orders issued by the First-tier Tribunal for Scotland because of rent arrears.

7.1.1.2 Paragraph 1(2) of schedule 1 makes provision for all private rented sector eviction cases going before the First-tier Tribunal (Housing and Property Chamber) to be considered on a discretionary basis. As of 30 June 2022, the First-tier Tribunal (Housing and Property Chamber) confirmed that it had received 1620 applications that fall within the scope of the emergency provisions. Of these, 606 had the order granted, 34 were refused, 123 were rejected at sifting, 435 were withdrawn and 30 were dismissed.

7.1.1.3 An analysis of the decisions made by the First-tier Tribunal (Housing and Property Chamber) shows that between 9 July 2020 and 5 July 2022, there have been a total of 311 eviction orders issued relating to private residential tenancies (PRTs) where rent arrears were cited.

7.1.1.4 Latest available COVID-19 dashboard information published by the Scottish Housing Regulator shows that the total value of rent arrears in the social sector increased substantially from £150.0m to £165.0m in the four months between the end of April 2020 and the end of August 2020, an increase of £15.0m (10.0%). The value of arrears subsequently stabilised across most months since then, and then decreased in March 2021 to stand at £160.7m as at end March 2021. Following this the value of arrears dropped further by £3.3m (2.0%) to £157.5m as at end June 2021, rose again to £174.5m by end of December 2021 and based on latest available figures to end March 2022 declined slightly to £164.9m

7.1.1.5 The dashboard information also shows that the number of notices of proceedings for recovery of possession issued by social landlords for rent arrears increased each month from June 2020, rising from 246 in June 2020 up to 1,514 in November 2020. After this the numbers decreased to 699 in January 2021, 875 in February 2021 and 934 in March 2021. Following which there have been 3,641 notices issued in the quarter April to June 2021 (an average level of 1,214 per month), 4,417 notices issues in the quarter July to September 2021 (an average level of 1,472 per month), 4,215 notices issued in the quarter October to December 2021 (an average level of 1,405 per month) and 4,152 in the latest quarter January to March 2022 (an average of 1,384 per month). The number of court actions initiated for eviction increased from 30 in June 2020 up to 102 in September 2020, after which the number fell to 63 in March 2021. Following this there have been 296 actions initiated in the quarter April to June 2021 (an average of 99 per month), 469 actions (an average of 156 per month) in the quarter July to September 2021, 409 actions (an average of 136 per month) in the quarter October to December 2021, and 629 actions (an average of 210 per month) in the latest quarter January to March 2022, levels which are significantly lower when compared to average monthly figures for previous years.

7.1.1.6 In light of the significant relaxation of restrictions in the vast majority of other areas of life - and that the housing market has been open and operational for some time now - the public health justification for extended notice periods are much reduced compared to when the provisions were first enacted. Therefore, Scottish Ministers expired the extended notice period provisions within Schedule 1 of the Coronavirus (Scotland) Act 2020 on 30 March 2022. All pre-COVID-19 notice periods returned from 31 March 2022.

7.1.1.7 The existing lengthened notice periods continue to apply to any eviction notice which was issued, but has not expired, prior to the day on which the extended notice periods expired (30 March 2022). Where an existing eviction notice has been served but has not expired, a new eviction notice raised on the same ground or grounds cannot expire before the existing notice – this is to prevent a landlord from just re-issuing an existing notice to take advantage of the shorter notice periods.

7.1.1.8 Where the notice has expired, the notice period no longer matters – eviction proceedings can be raised at that point. Subject to the provision about re-issuing existing notices, all eviction notices issued on or after the expiry of the extended notice periods will be subject to the applicable notice periods which applied prior to the 2020 Act coming into force.

7.1.1.9 Paragraph 8 of schedule 1 provided a power for Scottish Ministers, exercisable by the negative procedure, to modify the length of any period of notice specified to apply during the relevant period. This power was also expired on 30 March 2022.

7.1.1.10 It should be noted that the provisions relating to Tribunal discretion have been extended until September 2022, at which point the provisions will become permanent through the Coronavirus (Recovery and Reform) (Scotland) Bill, which passed its final Parliamentary stage on 28 June.

Additional Support

7.1.1.11 Additional reporting requirements under section 6(1) of the 2021 Act require details of the measures in place to protect tenants from eviction and any plans for further measures.

7.1.1.12 In relation to the additional measures in place to protect tenants, the Scottish Government allocated a funding share from a £10m Tenant Grant Fund to all 32 local authorities, in order to provide grants to tenants who have fallen behind on their rent as a result of the pandemic and are at risk of eviction. This is in addition to the £10 million loan funding made available to tenants and the £5 million loan funding made available to landlords. All local authorities were asked to provide monitoring reports on the operation of the grant fund to 31 December 2021 and a further spending report was submitted to the Scottish Government the following month, providing a spending 'snapshot' up until 31 January^[21]. This shows that over £1.8 million in grant has been paid to a total of 1,354 households, helping to sustain tenancies and prevent potential homelessness. The next set of data will cover the three-month period up to 31 March 2022 and will be published once all 32 local authorities have provided the relevant information. This was requested from local authorities in April and reminders were sent in May and June. We will continue to publish this information on a quarterly basis. To date, data until 31 March 2022 detailing expenditure, grant and refusal figures have been obtained for 23 local authorities. This shows £4,463,069.51 expenditure, 4,003 grants and 1,298 refusals.

7.1.1.13 In line with the Scottish Fiscal Commissions forecasting, the Scottish Government are also providing £8m housing support this year and provided £39m of additional funding to avoid evictions as a result of the pandemic. This includes £68.1m to mitigate the bedroom tax helping over 92,000 households in Scotland to sustain their tenancy. An additional £14.9m has been made available to mitigate against the damaging impact of other UK Government welfare cuts including to mitigate the Benefit Cap as far as we can within our powers and changes to the Local Housing Allowance rates. This investment is an important tool used to safeguard tenancies.

7.1.2 Section 5 and schedule 4, Part 4 – Extension of time limits

7.1.2.1 At this time, a significant backlog of cases continues to exist and the Scottish Government considers the extended time limits continue to be necessary. Evidence submitted by COPFS to the Criminal Justice Committee in March 2022 stated that there were currently 14,000 summary-only cases awaiting marking, 25% (around 3,500) of which were past their pre-pandemic time limit. Their evidence also noted that the number of sheriff and jury cases being prepared to bring before court has risen by 84% since March 2020 from 3,442 to 6,345. 742 cases are already older than the pre-pandemic time limit to be indicted, while a further 661 cases are approaching the pre-pandemic time limit. 854 of these cases have at least one accused in custody, of which 248 are older than the pre-pandemic time limit for service of indictment, while the remaining 606 are close to it. If the time limit extension provisions were not extended, this would result in an immediate requirement for 990 applications to extend time limits, with hundreds more over the coming months.

7.1.2.2. COPFS noted in their written evidence that as of 1 January 2022, there were 1,934 live cases in all High Court units – a 55% increase in live cases compared to April 2020. There are currently 339 cases which are over 7 months from the date of first appearance on petition and if the time limit extension were to cease imminently, COPFS would require to make at least 339 applications to the court to extend relevant time limits for the service of the indictment. There are 850 High Court cases which have been awaiting a trial date. Notably, none of the cases, custody or bail, scheduled for trial to commence between 10 January 2022 and 30 April 2022 are within the pre-pandemic time limit for a trial to commence. In summary, if the time limit extension provisions were not in effect, a large amount of resource would require to be diverted to make applications to extend time limits on a case-by case basis, which would in turn impact on the ability of prosecutors and courts to address the backlog of cases. In that evidence, with regard the solemn case backlog, they noted that "Substantial improvement in this situation is forecast to take several years."

7.1.3 Section 5 and schedule 4, Part 8 – Release of prisoners

7.1.3.1 These provisions were utilised to conduct a limited release of prisoners in May 2020 as detailed in the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/138).

7.1.3.2 The Coronavirus (Recovery and Reform) (Scotland) Act 2022 has made similar provision to this power. It will commence on 1 October 2022 and remain in force until 30 November 2023, with potential to further extend it to November 2025.

7.1.3.3 The Scottish Government will continue to engage with the Scottish Prison Service (SPS) in relation to the potential future use of these powers, as one aspect of wider ongoing discussions of the impact of COVID-19 on the prison system, and the safe management of the prison population. While SPS continue to make strenuous efforts to limit and mitigate any risk, there remains a real concern that future COVID-19 developments could still create circumstances that would make it necessary for Ministers to instruct a prisoner early release action, in order to reduce the strain on prison capacity and workforce (in the absence of other powers to give effect to release in this way). As required by the legislation, Ministers would need to be satisfied that the exercise of the powers is necessary and proportionate to the circumstances faced, with action being taken to maintain the effective operation of the prison system, and to protect the health and wellbeing of prisoners and prison staff.

7.1.3.4. The scale and scope of any future application of the power would have to be considered in response to the circumstances at that time, before being set out in regulations, which would be subject to parliamentary scrutiny. Should it become necessary to implement an early release process in order to maintain security and good order, or the health, safety or welfare of prison staff and prisoners, the Scottish Government will work closely with justice partners, public and third sector services, and victims groups, in order to plan and deliver the necessary activities.

Second Scottish Act

7.2.1 Section 2 and schedule 1, Part 1 – Student residential tenancy: termination by tenant

7.2.1.1 The position with regard to COVID-19 has changed significantly, with the reduced impact of the virus, the vaccination programme and the fact that most of the remaining restrictions in place have now been removed, the combined effect of which significantly reduces the need for students to leave accommodation for a reason related to coronavirus.

7.2.1.2 In March 2022, the Scottish Government consulted stakeholders through the Student Accommodation Group. The evidence from stakeholders highlighted a significant financial impact on institutions and purpose built student accommodation providers in 20/21 and 21/22 resulting from the exercise of the 28 day notice period and concern about the ongoing financial and operational impacts going forward into 22/23 if the provisions continued into the next academic year.

7.2.1.3 In light of the changed circumstances around COVID-19, the financial impact on stakeholders and in line with the cautious approach of the Government through and out of the pandemic, Scottish Ministers exercised their power to suspend the operation of the provisions. The Coronavirus (Scotland) (No.2) Act 2020 (Suspension: Termination of Student Residential Tenancy) Regulations 2022 came into force on 1st July 2022.

7.2.2 Section 2 and schedule 1, Part 2 – Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears

7.2.2.1 The provisions provide Scottish Ministers with the power to specify pre action requirements for private landlords seeking to end a private tenancy due to rent arrears, where those arrears relate to the period during which paragraph 4 of schedule 1 of the second Scottish Act is in force. The First-tier Tribunal for Scotland (Housing and Property Chamber) must take account of the extent to which a landlord has complied with the pre-action requirements when deciding whether it is reasonable to grant an order for repossession.

7.2.2.2 Schedule 1 of the first Scottish Act makes all grounds for repossession in the private rented sector discretionary, including for rent arrears. This temporarily changed the original position whereby the First-tier Tribunal for Scotland (Housing and Property Chamber) must grant a repossession order if the level of arrears is in accordance with the criteria laid out in the relevant legislation. This change ensures that the Tribunal considers the reasonableness of making a repossession order during the COVID-19 outbreak.

7.2.2.3 The introduction of regulations under the provision temporarily set pre action requirements that will apply where all or part of the rent arrears have originated in the period during which Part 2 of schedule 1 of the second Scottish Act is in force. The extent to which a landlord has complied with these requirements must be taken into account by the First-tier Tribunal for Scotland (Housing and Property Chamber) when deciding whether it is reasonable to grant a repossession order.

7.2.2.4 The introduction of regulations formalises the steps landlords should take in relation to working with private sector tenants to manage arrears prior to seeking repossession during the COVID-19 pandemic.

7.2.2.5 The Scottish Government has assessed the potential impact of these provisions on human rights, children's rights and equalities and considers the introduction of pre-action requirements will have a positive impact across those with protected characteristics including women and disabled people who may have been impacted by the consequences of coronavirus. The Scottish Government also considers these measures support the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights by ensuring appropriate safeguards are in place to prevent unnecessary eviction.

7.2.2.6 Parliament agreed that both the pre-action requirements on ground of rent arrears and the associated Tribunal discretion provisions be extended for a final 6 months until September 2022, at which point the provisions will become permanent through the Coronavirus (Recovery and Reform) (Scotland) Bill, which passed its final Parliamentary stage on 28 June.

7.2.2.7 The provisions were in force during the reporting period. The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/304) came into force on 30 September 2020.

7.2.3 Section 2 and schedule 1, Part 7 – Care Homes

7.2.3.1 Although these powers have been commenced and are available, they have not been used in this reporting period. Health Boards have not required to exercise their power of a direction over care homes using this legislation. Consequently, Health Boards have not had to use the corresponding power under section 63B of the Public Services Reform (Scotland) Act 2010 to act when said direction has not been complied with.

7.2.3.2 The Scottish Ministers have not required to make an application to the courts for an Emergency Intervention Order in relation to a care home under these powers. The Care Inspectorate updates Ministers of any care home providers about which they have serious concerns and provide regular updates to them to enable emergency action to be taken quickly if required.

7.2.3.3 No further regulations have been made under powers in section 65B during this fourteenth reporting period.

7.2.3.4 Whilst the effect of the pandemic has abated to some extent due to the relatively less serious effects of the Omicron variant and the fact that a large proportion of the population has been vaccinated and received boosters, the pandemic is still current and cases have risen recently. The Office for National Statistics has estimated that 1 in 17 people in Scotland were testing positive for COVID-19 in the week ending 30 June. The number of outbreaks in care homes has increased; as at 5 July 2022, there were 194 care homes (19%) with a current case of suspected COVID-19. This is an increase from 171 (16%) the previous week. There were 9 COVID-19 related care home death notifications w/e 10 July 2022.

7.2.3.5 Furthermore, there is some evidence that outbreaks in care homes have been more extensive. This has led to care homes often requiring considerable mutual aid and support from NHS and Local Authority partners. Good progress has been made in vaccinating residents with the 4th dose, although the effect of vaccination is not permanent. It's not only the nature of the resident population that makes them susceptible to COVID-19 (age frailty underlying medical conditions), but also the fact that they all live together in close proximity with shared staff and regular visitors. There is a greater risk of the virus spreading in care homes.

7.2.4 Section 2 and Schedule 1, Part 8 - Powers to purchase care home services and care at home providers

7.2.4.1 The provisions in section 2 and paragraphs 18 to 20 of schedule 1, Part 8 set out temporary powers available to Local Authorities to purchase, by agreement, a care home or care at home services. It also sets out the powers available to Health Bodies (a Health Board, the Common Services Agency and Health Improvement Scotland) to acquire a care home, by agreement, on behalf of Scottish Ministers.

7.2.4.2 Although these powers have been commenced and are available, they have not been used in the reporting period. Neither a health body nor a Local Authority has acquired a care home, nor has a Local Authority acquired a care at home service, under these voluntary purchase powers. Consequently, Scottish Ministers have not required to direct a health body to seek voluntary acquisition of a care home under these powers.

7.2.4.3 The factors considered to determine use and continued necessity of the powers are set out in 7.2.3. While the pandemic still continues, and care homes continue to experience outbreaks, it remains a possibility that some homes will need an intervention as circumstances can and may change quickly. The emergency powers provide a safety net and assurance, therefore, it is the opinion of the Scottish Government that these powers are still necessary and proportionate.

7.2.5 Section 3 and schedule 2, Part 1 – Criminal justice – Expiry of undertaking under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016

7.2.5.1 This provision provides the court with the power to prevent the expiry of an undertaking and any conditions attached to it by changing the time the person is due to appear at court. The Coronavirus (Recovery and Reform) (Scotland) Bill will further extend this temporary measure with equivalent provision.

7.2.5.2 By preventing the expiry of undertakings in this way, the measure has allowed COPFS to review the previously extended undertaking timescales, so dates may revert back to within 28 days of liberation, and 14 days for domestic abuse cases.

7.2.5.3 Retaining this provision will ensure the court continues to have the power to prevent the expiry of an undertaking and any conditions attached to it. If a person fails to appear at court as required by the terms of their undertaking, the court considers that the failure to appear is attributable to a reason relating to COVID-19 and it is not appropriate to grant a warrant for the person's arrest.

7.2.5.4 This enables the preservation of protective conditions of undertaking that may otherwise be lost where a person fails to attend court due to coronavirus and is a key measure to preserve public and victim safety during the COVID-19 outbreak, particularly in sensitive cases of domestic abuse.

UK Act

7.3.1 Section 49 and schedule 19 – Health Protection Regulations: Scotland

7.3.1.1 Section 49 and schedule 19 came into force on 25 March 2020. The provisions give the Scottish Ministers power to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination with COVID-19 in Scotland. These powers have been used to make regulations to provide for restrictions and requirements during the pandemic. These provisions have been extended until 24 September 2022. There have been no regulations made using these powers in this fourteenth reporting period.

7.3.1.2 This means that the only regulations made under schedule that remain in force are The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 (SSI 2020/262)).

7.3.1.3 Associated guidance on regulations made under schedule 19 has been regularly updated – see here for the current Scottish Government guidance - Coronavirus (COVID-19): guidance - gov.scot (www.gov.scot).

7.3.1.4 The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 (SSI 2020/262) must be reviewed at least every 42 days to ensure that the powers they provide continue to be necessary and proportionate. In between these formal reviews, the individual measures are kept under continuous review. Changes arising from any review are set out to the Scottish Parliament in plenary and considered by the Parliament's COVID-19 Committee. At the last review, it was agreed that we would work towards the removal of these regulations, as they are no longer deemed necessary and are set to expire in September 2022.

7.3.1.5 Changes to regulations under schedule 19 are assessed through the Four Harms approach, which draws on evidence and analysis to assess both current and future direct and indirect health impacts and the social and economic impacts of the pandemic and of proposed regulations. Underpinning this is Scotland's Strategic Framework which describes our latest approach to managing the pandemic. The Strategic Framework was reviewed and updated on 22 February 2022.

7.3.1.6 In addition, the Modelling the Epidemic series provides outputs from modelling of the spread and level of the epidemic by Scottish Government, as well as results by modelling groups feeding into the SAGE consensus. These help ensure a robust, peer-tested and up to date picture informs decisions.

7.3.1.7 Public Health Scotland ("PHS") also publish a COVID-19 weekly statistical report. This report summarises the current COVID-19 data in Scotland presenting statistics on reported cases, estimated infection levels, hospital and ICU admissions and vaccine effectiveness

7.3.1.8 Four Harms: Throughout the pandemic, decisions about restrictions and requirements have been taken on the basis of public health and clinical advice, and an assessment against the four harms caused by the virus. These decisions require judgement to be applied to the facts and considerations relevant at the time they are made. Decisions take in clinical advice from the National Incident Management Team and Scottish Government clinical leads around the Harm 1 direct health impacts from COVID-19. Directors of Public Health monitor data on a daily and weekly basis and SG officials update the suite of indicators weekly. The National Incident Management Team considers this information alongside local data and analysis in providing public health advice.

7.3.1.9 This is brought together with evidence and the assessment of impact on the other Harms caused by the virus – including the indirect health harms, the social harms and harms to the economy. Wider considerations are also taken into account such as the prevalence of infection elsewhere, or of the characteristics of new variants – which might suggest differential impacts.

7.3.1.10 Measures imposed by regulations must be necessary and proportionate. Whilst statutory measures aim to deal with a significant threat to public health, throughout the development of the regulations and guidance, the Scottish Government has always had regard to the need to protect human rights, equality considerations, the impact on business and the particular needs of island communities as part of the policy development process. Appropriate impact assessments are carried out as part of this process and are reported to the Scottish Parliament. They can be found on www.legislation.gov.uk under the appropriate instrument.