Coronavirus (COVID-19) Cross Party Covid Recovery Steering Group: briefing paper - support for tenants

Prior to the pandemic, Scottish tenants already had significantly more protections than tenants in other parts of the UK.  These protections provided a  strong base to further strengthen when the pandemic started.

For private tenants, the introduction of the Private Residential Tenancy in 2017 (through the Private Housing (Tenancies) (Scotland) Act 2016) provided improvements in security of tenure and affordability.  Whilst in the social sector, the Housing (Scotland) Act 2010 introduced the independent regulator of social landlords, with a single statutory objective: to safeguard and promote the interests of current and future tenants of social landlords and other users of social landlords services. 

A short summary of pre-Covid protection for tenants can be found in Annex A of this briefing paper.

Since the start of the pandemic the following extensive package of support for tenants has been put in place:

Through the first Coronavirus Act:

• Notice periods were increased for evictions to 6 months in most cases; and
• All Tribunal decisions on private rented sector evictions were made discretionary so they can take all circumstances into account.

Through the Second Coronavirus Act:

• Pre-action requirements for private landlords looking to raise eviction action on the grounds of rent arrears were introduced, including the requirement for landlords to signpost tenants to information and advice. This matches requirements in the social sector.

Through policy changes and financial support:

• We created interest free loans for eligible tenants and landlords to help them through this period. The landlord fund of £5m was established May 2020 and £10m tenants’ fund in December 2020.
• We undertook multiple communication exercises to ensure tenants are aware of their rights, including a number of social media campaigns and letters in summer of 2020 from the Minister for Local Government Housing and Planning,  to all private and social rented tenants providing details about their rights, responsibilities and the support available.
• We quickly established resilience groups with key stakeholders from the private rented, social rented sectors and local government - working with them on the response to, and recovery from, the pandemic.
• We increased the amount of money available through Discretionary Housing Payments - those that are available outside of our full mitigation of the bedroom tax - by £8 million to almost £19 million in 2020/21.
• The average DHP award value, which is not broken down into bedroom tax DHP or Other DHP as this level of data is unavailable, increased to £547 from the average award of £513 in the previous year.
• We continue to mitigate the impact of the bedroom tax in full which cost £62.7 million in 2020/21 (£3 million higher than expected) due to the increase in numbers claiming unemployment benefits as a result of the pandemic.
• We continue to invest in discretionary housing payments with more than £80 million budgeted in 2021/2022 to provide direct financial support to those struggling with housing costs. This includes £71 million to mitigate the bedroom tax in full and £10.9 million to help those affected by the Benefit Cap and changes to the Local Housing Allowance rates.
• We increased the amount of funding for Other Discretionary Housing Payments by 127% when DHPs were devolved in 2017 and have maintained this every year since. We have regular contact with Local Authorities and publish monthly DHP statistics to ensure that any further impacts are known as they emerge.
• Due to a number of temporary measures in place as a response to the pandemic the worst anticipated consequences on tenants have not yet been seen, which is why we agreed a methodology with local government to reallocate any underspend amongst all 32 Local Authorities so that every Local Authority will benefit from this. We are finalising the reconciliation work with updated figures available soon.
• In April 2021 total actual or committed spend was £56.1 million, which is 19% more than at the same point in 2020/21.
• Large increases in expenditure are due, in part, to low figures reported in April 2020, however the majority of this spend will be for mitigation of the bedroom tax with awards made in April committing funds for the full year.
• We funded a pilot project by Cyrenians and Crisis to facilitate settled accommodation in the private rented sector for individuals who were living in emergency hotel accommodation in Edinburgh. Learning is being captured and outcomes evaluated during the project, including tenancy sustainment rates to  inform decision making on a Scotland-wide proposal for increasing access to the private rented sector.

Evictions Ban

The evictions ban was first introduced on 11th December 2020 via standalone legislation - the Health Protection (Coronavirus) (Protection from Eviction) (Scotland) Regulations 2020, providing a short-term national ban over the festive period.

The current evictions ban was added to the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 via the 12th Amendment Regulations (SSI 2021/17) as a health intervention to help prevent the spread of the virus.  They were approved by Parliament with no opposition by the Covid Committee on 28th January 2021. This ban began on 22nd January 2021 and continues to apply in areas subject to level 3 or 4 restrictions until 30 September.

Eviction Ban Legal Considerations

When seeking the introduction of an unprecedented longer-term ban on evictions, consideration of the landlord’s property rights under ECHR Article 1 of Protocol 1 was needed as we were introducing a control on a landlord’s use of their property. Accordingly, the evictions ban must be proportionate, balancing the interests of landlords and interest of the tenants.

The evictions ban was introduced using powers in the Coronavirus Act to address the public health impact of the pandemic, with the clear ambition to prevent the spread of the virus. Those powers can only be used for the purpose of combating the incidence or spread or infection or contamination in Scotland and not for social or economic considerations.

A temporary evictions ban is only one of a wide range of measures to support tenants and encourage landlords and tenants to work together to ensure sustainable tenancies are secured and evictions prevented altogether, not just delayed. Where that isn’t possible we are working to ensure people can secure new sustainable housing solutions and lead a positive, inclusive recovery of the sector.

Eviction Applications

The purpose of the extensive interventions has been to ensure people are supported to stay in their homes during the pandemic and to get landlords and tenants to work together to establish sustainable solutions.

Since the start of the pandemic, evidence suggests that applications for the First Tier Tribunal (dealing with the private rented sector) have almost halved and the number of court actions for social sector evictions are around 10% the normal average number.  Details of the figures are provided at Annex A.

Measures in development

We continue to monitor this, especially with the move to levels 2 and 1 across the country. Further policies being developed are:

• a written Collective Agreement with social landlords that they will not progress eviction of any tenant where they consider the financial or social impact of Covid-19 has had any bearing on the rent arrears, including cases where Tenants are not yet engaging;
• exploring policies for creating sustainable tenancies in the PRS for those who have been financially affected by Covid;
• further awareness raising of tenants’ rights, as the protections provided to people are substantial and it is crucial they are aware of those rights; and
• securing additional data.

Housing to 2040

As set out in Housing to 2040, launched 15 March, we will publish a draft of the new rented sector strategy by the end of this year, for consultation early in 2022.

This will build on the significant reforms through the private residential tenancies, which introduced a range of comprehensive rights and protections for tenants. For the social sector, this includes a new ambition to deliver 100,000 affordable homes by 2031/32.  The new strategy will be informed by those most affected, and seek to improve accessibility, affordability and standards across the whole rented sector.

Some aspects of the new Rented Sector Strategy will require legislative change, and we will bring forward a new Housing Bill in this Parliament.

ANNEX A: Existing Protections for Tenants

Private Residential Tenancy (PRT)

This Government has introduced a range of reforms through our Private Housing (Tenancies) (Scotland) Act 2016 – which brought the most significant change in private renting in Scotland for almost 30 years.  The underlying principle of the Private Residential Tenancy (PRT) is that when a landlord rents out their property to a tenant, it becomes the tenant’s home, over which they must have security. 

The PRT gives tenants a range of new rights and greater security, stability and predictability in their rents as well as introducing measures to tackle increasing rents. This included:

• limiting rent increases to once in 12 months, with three months’ notice required;
• enabling tenants to challenge unfair rent increases for adjudication by a Rent Officer; and
• providing local authorities with new discretionary powers to designate an area as being a Rent Pressure Zone (RPZ).

Scottish Social Housing Charter

The Charter came into effect in April 2012 following approval by the Scottish Parliament. It  sets out clearly what tenants and other customers can expect from social landlords.  It was reviewed in 2016 and a further  review is being carried out during 2021,  with a revised Charter will coming into effect in April 2022.

One of the Scottish Housing Regulator’s main duties is to monitor and report on landlord performance against the standards and outcomes  in the Charter.  The Charter is drives better performance and higher standards in service delivery making landlords more responsive to the needs and aspirations of their tenants and other customers.

Evictions Data

Figures from the First Tier Tribunal (which deals with evictions in the private rented sector), show the number of applications for evictions had reduced during the Covid period compared to the previous year:

• Between 1 Apr 2020 to 14 June 2021 - 972 eviction applications were received and registered (265 which fell within the Covid Regulations), compared to 1869 in the period Apr 2019 - June 2020.
• Between 1 Apr 2020 to 14 June 2021 - 531 Eviction Orders were granted, compared to 826 in the period Apr 2019 - June 2020.
• 139 orders for Evictions have been granted under the Covid regulations.

The Scottish Housing Regulator’s dashboard report has data on court actions initiated in the social sector between June 2020 and March 2021 (excluding Dec 2020), and this shows that the average number of court actions for eviction was 74 cases per month, which is around 10% of the average number in the previous year 2019/20

The Scottish Government is currently taking forward a number of survey’s in order to gather additional data on evictions in Scotland.

1st and 2nd Coronavirus (Scotland) Acts

Brought into force on 7 April 2020, the Coronavirus (Scotland) Act 2020 introduced:

• extended notice periods – of up to 6 months – across all eviction grounds in the private and social rented sectors; and
• provisions to enable the First-tier Tribunal discretion to consider all relevant factors in relation to eviction cases in the private rented sector.  Prior to 7 April, some eviction grounds were mandatory where certain criteria was met (it should be noted that discretion already existed in the social rented sector).

Brought into force on 27  May 2020, the Coronavirus (Scotland) (No.2) Act 2020 introduced:

• private landlord pre-action requirements.  These provisions set out the steps a landlord should take to support a tenant before they commence eviction action on the grounds of rent arrears.  This provision is linked directly to the 1st Act in that a Tribunal can use their discretion to refuse an eviction order, if it is found that the landlord did not follow the pre-action requirements.

The provisions within the 1st and 2nd Coronavirus Acts are due to expire on 30 September 2021.

Evictions Ban

The evictions ban was first introduced on 11 December 2020 via standalone legislation - the Health Protection (Coronavirus) (Protection from Eviction) (Scotland) Regulations 2020, providing a short-term national ban over the festive period.

The current evictions ban was added to the Health Protection (Coronavirus) (Restrictions and Requirements) (Local Levels) (Scotland) Regulations 2020 via the 12th Amendment Regulations (SSI 2021/17) as a health intervention to help prevent the spread of the virus.  They were approved by Parliament with no opposition by the Covid Committee on 28th January 2021. This ban began on 22nd January 2021 and continues to apply in areas subject to level 3 or 4 restrictions until 30 September.

Ministers are currently looking at the strategic intent and how long restrictions in the Local Level Regulations will be needed, is part of that.  No decisions have yet been taken in relation to an extension beyond 30 September.

Coronavirus (Extension and Expiry) Bill

The Coronavirus (Extension and Expiry) Bill 2021, which will be introduced to Parliament on 18 June, will set out that the all of the provisions contained within the 1st and 2nd Coronavirus Acts will be extended beyond 30 September 2021, until 31 March 2022.  Scottish Ministers will also be able to seek a further extension – until 30 September 2022 – subject to Parliament’s agreement.

Coronavirus (Permanence) Scotland Bill Consultation

On 25 June, the Scottish Government will launch a consultation on a Coronavirus Permanence Bill, that will set out our intention to make the following provisions of the Coronavirus (Scotland) Acts permanent:

• provisions to enable the First-tier Tribunal discretion to consider all factors in relation to eviction cases in the private rented sector; and
• private landlord pre-action requirements. 

During the passage of the second Coronavirus Bill through Parliament, the then Minister for Local Government, Housing and Planning indicated his preference to introduce private landlord pre-action protocols on a permanent basis.

By including these provisions within the Permanence Bill, we are ensuring that two key protections for private renters, will remain in place until such time as a future Housing Bill can repeal those provisions and replace them with more refined provisions.  This will enable the Scottish Ministers to take into account the experiences of landlords and tenants with the discretionary grounds of eviction and pre-action requirements in the interim period and refine those provisions accordingly.

Whilst yet to be confirmed by the Minister for Parliamentary Business, officials have suggested that a new Housing Bill is not introduced before year 2 of this Parliament.