7. Succession to a Scottish Secure Tenancy
7.1 Section 13 of the Housing (Scotland) Act 2014 amends schedule 3 to the Housing (Scotland) Act 2001. It introduces a new 12 month qualifying period and notification requirement before certain categories of persons become 'qualified persons' and have the right to succeed to a Scottish secure tenancy on the death of the tenant (previously the only qualifying period was a 6 month qualifying period in the case of partners).
7.2 There continues to be no qualifying period under the new provisions for the tenant's spouse, civil partner or joint tenant, provided (in all 3 cases) that the person's only or principal home was the house in question at the time of the tenant's death.
7.3 A person falling within the following categories are qualified persons where the house has been their only or principal home throughout the 12 months ending in the tenant's death:
- partners (cohabitants of either sex and including same sex cohabitants);
- members of the tenant's family aged 16 or over; and
- carers aged 16 or over who have given up a previous only or principal home.
7.4 Under the new provisions, to have a right to succeed to a tenancy after living in the house for 12 months, the 'qualifying person' or the tenant must also have notified their landlord that the person wishing to succeed to the tenancy is living in the house and that the house is that person's only or principal home. The 12 month qualifying period does not start until that notice has been given. The tenant (or any one of joint tenants) or the person who has moved into the house are responsible for notifying the landlord that the person has moved in.
Succession - Transitional Provisions
7.5 A notification given before 1 November 2019 by the tenant, or a person in any one of the categories at paragraph 7.3 above, advising that the specified person is living in the house as their only or principal home is to be treated by the landlord as notification of the start of the new 12 month residency requirement introduced in schedule 3 of the 2001 Act. An example of this is below.
7.6 The sole tenant of the property in question notified the landlord that his carer moved into the property as her only or principal home on 2 August 2019, the tenant then died on 30 November 2019. The carer would not satisfy the 12 month qualifying period at the time of the tenant's death and would not have a right to succeed. Landlords will want to deal sensitively with cases where the person applying to succeed, such as a carer, does not satisfy the full 12 month qualifying period and guidance on this is provided at paragraphs 7.11 to 7.19 below.
Succession - Notification and Applying Succession Rules
7.7 Landlords should set out clearly in their tenancy information such as tenants' handbooks, which methods of notification they will accept and who the notification should be made to. For example, this could include notification by email or letter or by the tenant updating their household information on web-based tenancy management systems. Where a child in the household reaches the age of 16, landlords will want to take a practical approach to the notification of this information. For example if they were part of the household when the house was allocated and/or it is their long-term and principal home, the landlord will know who is living in the property and that should be considered as notification.
7.8 Where landlords are notified that someone has moved into the property, in line with current practice, they will wish to consider whether it is appropriate for that person to live in the house. For example, if this results in overcrowding they may refuse permission to remain in the property. The notification will also give landlords an opportunity to identify any other issues arising from the person's residency in the house such as support needs.
7.9 These new qualifying criteria will assist landlords to minimise disputes over succession rights and to make best use of their available housing stock.
7.10 As is currently the case, where there are several qualifying persons, and/or a qualified person advises that they do not wish to succeed to the tenancy, the landlord will need to apply the rules about the order of succession rights and the rules about succession for properties designed or substantially adapted for the use of people with special needs.
Succession - Exceptional Circumstances
7.11 When considering all applications for succession, at what will be a difficult time for applicants coping with bereavement, landlords should ensure that they do so sensitively and quickly. Landlords will need to consider all the circumstances of the individual case and ensure that appropriate checks are made to determine whether the applicant meets the succession criteria.
7.12 Where an applicant does not have the right to succeed, landlords have no discretion to grant a succession of tenancy. Whilst there is no statutory period of time that a person can remain in the home where there is nobody qualified to succeed, landlords will as is currently the case be expected to show some sensitivity in these situations.
7.13 Depending on the individual circumstance there will sometimes be cases where a landlord considers it appropriate to allocate a tenancy to the applicant, for example the existing tenancy or the tenancy of another property. In these cases a new tenancy will be granted and it will not be a succession. By including an 'exceptional circumstances' clause in their allocations policy, landlords will give themselves the flexibility to allocate a tenancy where an individual does not have the right to succeed to the tenancy but the landlord believes there to be circumstances that justify allocating them a tenancy.
Succession - Carers
7.14 It is essential to recognise the important role of carers, the valuable contribution they make and to ensure that they are not disadvantaged by the new criteria for succession. Some of the most common reasons for moving in are to provide care to a parent or other older relative with dementia or illness or frailty associated with old age or to care for someone who has a terminal or life limiting illness, with many carers giving up their home, career and financial security to provide care.
7.15 As with all applications for succession, landlords will want to ensure that they consider applications quickly and sensitively. Landlords will also want to bear in mind that uncertainty over their housing situation and the process of applying for succession is likely to cause additional stress for carers during a time of bereavement and upheaval as their caring role ends.
7.16 There will be some cases where an individual has given up their main residence to care for a social housing tenant, or have not informed the landlord they have moved in, and the tenant dies before the 12 month qualifying period has been met. In such cases the carer may then find themselves with no right to the tenancy and potentially homeless at a time when they are also experiencing bereavement.
7.17 These cases will not be common and in some cases there may be understandable and genuine reasons why a carer or tenant has not told the landlord of the changes to the household composition. This could include where the carer moved in following a medical emergency or where they were providing a high level of care which left them with little time for seeking out information and support, or informing the landlord that they have moved in.
7.18 Where an applicant does not meet the criteria for succession, landlords will need to consider carefully all of the circumstances of the individual case and consider whether it is appropriate to allocate a new tenancy for the same or another property, to them.
7.19 It is recommended that landlords should provide all their tenants with a copy of the letter attached at Annex A when notifying their tenants of the new criteria for succession. This letter has been provided by the Coalition of Carers and is a way of specifically highlighting the changes to carers and explaining the new succession arrangements and what tenants should do where other people live with them and help to look after them.
Succession - Applications
7.20 While succession passes by law, landlords normally require the person who wishes to succeed to the tenancy to apply to them for permission to do so and get their landlord's written consent. Tenants also have a responsibility to advise their landlord of any changes to their household as part of their tenancy agreement. Landlords should set out clearly in their tenancy information, such as tenants' handbooks, which methods of application they will accept and who this should be made to. For example this could include application by email or letter.
7.21 Unfortunately there are a few cases where applicants try to take advantage of the succession criteria. In these cases, it can often be difficult to differentiate between genuine qualifying people and those who have just moved into the house in order to take advantage of succession rights. The new qualifying period and notification requirements are intended to reduce these situations.
7.22 Landlords will need to consider all the circumstances of the individual case and ensure that appropriate checks are made to determine whether or not the applicant meets the succession criteria. If they do not, then they cannot succeed to the tenancy. Landlords will then have to decide whether or not to offer a new tenancy to the person. For example, this could be a tenancy for the existing house or the tenancy of another property.
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