PART 2: WHAT THE PACK SHOULD LOOK LIKE AND HOW IT WILL WORK IN PRACTICE
The consultation document stressed that the pack should be presented in a way that is clear, accessible and straightforward, without causing an additional burden on landlords.
Discussions with the implementation working group concluded that the TIP could consist of a booklet accompanied by a covering checklist. It is proposed that the pack works as follows:
- A PDF will be created and placed on a website (possibly the Scottish Government website to maintain version control).
- The pack will be given to the tenant at the start of the tenancy in either hard copy or online.
- If the tenant is given the pack as a hard copy, both parties will have to sign and retain the declaration at the bottom of the checklist. Alternatively, if the pack is issued electronically the tenant would have to confirm receipt by email.
7. PRESENTATION OF THE PACK
Q12: What are your views on the way the example pack contained in this consultation document is presented? For example, is it "fit for purpose", clear, understandable, and easy to interpret?
7.1 The pack was given much praise from different sectors in interviews, focus groups and in the written responses for its clear layout, use of headings and sub-headings and bite size information. Most appreciated that for economical reasons the pack did not contain graphics or colour although a few respondents felt that some use of colour even at the page borders would help with signposting (student tenants; large landlords 1 and 2).
7.2 One large landlord considered that an A5 format would be preferable for handing out to tenants. Student tenants, however, felt that the A4 presentation was easier for them to print out.
7.3 A minority of the written consultees (7 across 5 different sectors) considered that the pack was overly complex and wordy in places, a general complaint being that key details were cluttered with too much general information, or too much wording at times. One respondent commented:
" ..edit and prune existing text. For example, the sentence "As a tenant of a privately let residential property the law protects you against harassment..." All the tenant needs to know is: "The law protects you against harassment" (Ind).
7.4 One respondent (Rep) liked in particular the clarity and brevity of the section 2.7 on inventories and requested that this set the template for the rest of the document. Another (LA) appreciated the bulleted presentation of sections 4.1 and 4.2 and queried why the rest of section 4 did not follow this pattern.
7.5 Most perceived the pack to strike a good balance between providing robust information yet not overburdening landlord or tenant with complex information. One large landlord commented in interview that the pack is "as good as you'll get". The length was seen by most written consultees to be acceptable although a minority of 6 (including 4 agents) stated explicitly that they thought the document to be too long. A few large landlords and agents remarked that on first sight they thought the pack was too long, but on reading it they felt nothing could be removed. One typical comment was:
"When I first saw it I thought it looked big, but I was quite happily surprised that it's got quite enough information in it, without bombarding someone" (large landlord 5).
Three of the written consultees (Landlord; LA; Oth) expressed concern that the pack could appear intimidating to single property landlords or tenants in terms of its detail and reference to a volume of paperwork.
7.6 The language was welcomed by large landlord and agent interviewees and tenant and small landlord participants in focus groups as being plain and avoiding legal jargon. One specific comment was that it struck a balance between being in plain English yet not too simple as to be misleading (large landlord 5).
7.7 The balance of views amongst written consultees was that the pack was easy to understand and concise. There were recurring comments amongst a minority of respondents, however, that the drafting could be tightened in places to make it more accessible and direct. In interview one agent commented that at times the document "slipped confusingly between legal and non legal terminology". This view was repeated by a few of the written consultees (Ind; Vol), with reference to section 2.5 as an example of a section where it was felt that background legislation got in the way of stating clearly what is permitted.
7.8 One respondent (Rep) remarked that the pack did not appear to have been written for the audience for which it is intended. Others (Ind; Vol) suggested that the pack could speak more directly to its audience by using wording such as "you" rather than "the tenant".
7.9 Another respondent (Rep) considered that the pack contained several subjective terms which required further explanation. The term "within reason" was provided as an example.
7.10 Views contrasted on the preferred order of the sections. However, one recurring view was that current section 1 on type of tenancy was not as important to tenants as others such as rights and responsibilities, or information about the property. Another point of general agreement was that contact information needed to be easily accessible by placing it either at the end or the start of the pack.
7.11 Tenants commented that the order of the pack should be determined by when the pack will be received. If provided prior to taking on a tenancy then it seemed logical to start with information on pre-tenancies. However, if received at signing of the lease, then information on rights and responsibilities may be more relevant to present up front.
7.12 One large landlord and 5 of the written consultees (LA; Vol; Rep; Agent; Oth) made alternative suggestions for ordering the information based on what they perceived to be a logical progression (or "journey" (Agent)) through the process of a tenancy from decisions on taking on the lease, to maintenance of the tenancy and ending the tenancy.
7.13 Although there was general agreement that the pack might seem daunting to tenants for whom English is not their first language, there were mixed views on whether translated versions should be made available. In interviews and focus groups landlords expressed their view that responsibility for this lay ultimately with the Government, but care should be taken with the translation of legal terms and issues to ensure the law is upheld.
7.14 Other formats suggested for the pack were:
- Braille (student tenants)
- Large print (student tenants)
- CD and memory stick (large landlord 3)
- DVD in British sign language (Rep; Rep)
- Easy read version with graphics (Rep; Rep)
7.15 Two written respondents (HA; LA) argued for supporting leaflets (e.g. advice on fuel poverty, advice on managing finances) to be in hard copy to cater for those who do not have access to the internet and therefore cannot access hyperlinks.
Fit for purpose
7.16 The pack was viewed in general as fit for its main purpose of providing a reference for information for tenants. One tenant commented:
"I've rented properties for almost 30 years and I've learned stuff from this!"
More specific purposes for the pack were envisaged:
- Improving standards (tenants; LA).
- Whittling out the rogue landlords (tenants).
- Plugging gaps if unscrupulous landlords do not provide adequate information (agent 2).
- Providing all relevant information in a single, common and concise fashion (LA).
- Ensuring tenants across Scotland receive consistent, reliable information (Oth).
- Making it easier and clearer for landlords to understand what they need to provide to their tenants (Oth).
- Improving the relationship between tenants, landlords and communities (large landlord 5).
- Promoting transparency between tenant and landlords (tenants).
- Providing information when things go wrong or there is a dispute (small landlords).
- Providing information when circumstances change (large landlord 1).
- Keeping useful information for tenants in one place (agent 1).
- Removing the problem of tenants claiming ignorance (agent 5).
- Supporting the signing of the lease by giving it more importance (agent 3).
- Supporting the introduction of the tenant deposit schemes (agent 3).
7.17 A minority of the written consultees considered that the pack's usefulness was currently curtailed due to the lack of clarity over its relationship and apparent duplication with the lease. One suggestion was for the insertion of a clear statement along the lines of:
"The pack does not form part of the tenancy agreement but sets out the essential information that landlords and tenants must have regard to" (Rep).
7.18 Another concern was that the pack clouds issues of legality such as the authority of the landlord and agent to provide advice. One respondent (Legal) urged that the information in the pack be clearly branded as Scottish Government advice.
7.19 Other suggestions made for improving the usefulness of the pack were:
- Improving the information on bringing the tenancy to an end (LA).
- Improving the signposting to further information (LA).
- Making it clear where recommendations are optional and landlords can tailor these to each tenancy as appropriate (Landlord).
- Making it clear whether this is a pre-tenancy or a tenancy pack (Ind).
Notion of a "pack"
7.20 A few participants in the tenants' focus group commented that the title "pack" sounded user-friendly and useful. They perceived a TIP to be "on our side", "working for the tenant" and "protecting our rights". Small landlords on the other hand reported that a "pack" sounded quite daunting and in reality the TIP was only one element within an overall "pack" of documents. One agent suggested that the TIP be referred to more accurately as the "TIP along with supporting documents".
7.21 Written respondents representing fire bodies recommended that the checklist and pack include information on fire and safety measures in their own right.
Tailoring the pack
7.22 Several of the large landlords and agents commented in interview that they already produce information for tenants and for most the TIP duplicated some of this. Some commented that the TIP complemented their information provision, the former being more general, and the latter more specific to the particular property. There was uncertainty about the extent to which they would be permitted to tailor the pack in order to avoid duplication with their existing information, or remove what they perceived to be unnecessary details (such as the information on assured tenancies). One large landlord stated that if they could tailor the TIP they could rationalise their information provision, possibly removing the need for their own information pack.
7.23 A recurring suggestion emerging from written responses was for the pack to be provided electronically to landlords with the purpose of enabling them to customise sections such as relevant contacts, to make the pack more location and tenancy specific.
- The pack was widely praised for what was perceived to be its clear layout, use of headings and sub-headings and bite size information.
- Most considered that the pack struck a good balance between providing robust information yet not overburdening landlord or tenant with complex information.
- The document was welcomed as being largely in plain English and avoiding legal jargon. However, it was suggested that the drafting could be tightened in places to make it more accessible.
- Views were mixed on the preferred order of the sections. One recurring view was that the information on rights and responsibilities should be placed further towards the start of the document. Others considered the order of sections should follow the logical "journey" of the tenant, from pre-tenancy to ending the tenancy.
- Whilst there was general agreement on the need for the pack to be provided in alternative formats, many viewed this provision as the responsibility of the Scottish Government.
- The pack was viewed as fulfilling the purpose of providing consistent and reliable reference information for tenants. Other purposes were highlighted including exposing rogue landlords and improving the relationship between landlord and tenant.
- The notion of a TIP was welcomed by tenants as appearing to be user-friendly and useful; small landlords, however, perceived the notion of a "pack" to be daunting.
- Landlords and agents requested clarity on the extent to which they would be permitted to tailor the pack to avoid duplication with the lease, remove what they perceived to be unnecessary details, and to insert local information.
Q13: What are your views on the proposed process outlined in the consultation document for managing the content and for accessing the pack?
8.1 The majority view amongst tenants, student tenants, landlords large and small and agents was for the pack to be available in hard copy form, backed up with access to an online version, probably held on the Scottish Government website. The benefits of providing hard copies of the TIP were perceived to be:
- easier to have at hand for referencing
- addresses issue of tenants being unlikely to save an email with the TIP attached, or print out the TIP
- better for people without access to a computer
- to enable hard copy acknowledgement of receipt of the pack.
8.2 A common view from large landlords and agents was that they were used to providing information in this manner and although the TIP was additional information to distribute this did not create too much of an extra burden. One agent commented that if an agent or landlord did have concerns about printing out hard copies, they could always ask their tenants to give a copy back at the end of their tenancy.
8.3 Written consultees also envisaged in general the provision of the pack both electronically and in hard copy, with one respondent reflecting the views of others by stating that the proposals appeared to be, "sufficient, reasonable and appropriate" (LA). Many focused on considering the benefits of the Scottish Government hosting the pack on its website. Advantages included:
- ensures that the information will managed correctly
- ensures that updating can done promptly
- ensures that the information presented will be consistent across Scotland and across landlords
- limits the likelihood of landlords issuing out of date information.
8.4 The theme of keeping the information up-to-date emerged repeatedly in written responses. For example, respondents requested information on whether and in what form a system of notification of updates will operate (LA); how tenants will be informed of the need to double-check with the Government's "control" version of the pack (LA); it was recommended that the online version states clearly the date when it was last reviewed (Oth); concern was raised over links to further information becoming out of date and defunct (LA; Agent). In this regard it was commented that the hyperlink to Consumer Focus information about electrical safety is already redundant as is the reference to CORGI in the contacts section.
8.5 Some written respondents addressed these issues by suggesting the pack be accessed as a standard online template that is "write protected", along with specific fields which can be customised as appropriate by the landlord or agent. This compromise was seen as enabling support organisations to provide up-to-date hyperlinks for inclusion in the pack, whilst also ensuring that essential information is not amended or deleted by rogue landlords prior to providing their tenants with the pack.
8.6 The notion of hosting the pack on a web portal was raised by a few respondents with 2 (Oth; Rep) suggesting this be run through the Scottish Government's proposed "Direct Scot" portal, and another (Rep) suggesting that Shelter may be in a good position to operate the portal. The benefits of a web portal were seen largely in terms of enabling the user to access the pack and supporting information on one site, rather than having to click onto multiple sites run by different organisations. One respondent (Rep) also argued that under such an arrangement the pack itself could be kept relatively brief.
8.7 A few respondents commented that some tenants may be disadvantaged if the pack is accessible in electronic form only, although this may be the most economic and environmentally friendly option. In particular, it was felt that older people, people with limited IT literacy, those living in remote and rural areas with slow broadband speeds, people with no access to printers and those on low incomes could be placed at a disadvantage. It was also noted that providing the pack in hard copy only will mean that people with no access to the internet will not be able to use the hyperlinks to further information. One respondent (LA) commented on the likelihood of supporting information such as safety certificates being available in hard copy, making it more appropriate that the pack also be available in this format.
Q14: Does the process outlined in this consultation document provide adequate confirmation that the pack has been provided to the tenant before the tenancy has begun? If not, can you explain why?
Timing of distribution
8.8 Views of participants in the focus groups and interviews were split over whether the TIP should be accessed before the lease is signed, or at the time of signing. The benefits of accessing the TIP beforehand were identified as:
- enabling the prospective tenant to be informed about the standards maintained by the landlord prior to agreeing to take on their tenancy
- saving office time during process of signing the lease.
It was commented that providing the pack before signing the lease may prove to be expensive if the person does not then proceed with the tenancy (large landlord 3; Landlord):
"...there is no way I will provide anything that is 8 pages long at my expense before I can enter into a legally binding contract" (Landlord).
8.9 Timing of the distribution of the TIP emerged as an important theme amongst the written responses. Many respondents from a variety of different sectors felt that the details in the consultation document relating to timing the distribution of the TIP were vague or contradictory. For example, page 8 of the document refers to providing the pack "at the start" of the tenancy; paragraph 4.2 refers to providing the TIP but does not give any timescale; the checklist refers to providing the pack "no later than the date on which the assured tenancy commences"; the consultation question refers to providing the pack before the tenancy has begun. This perceived lack of clarity and inconsistency led one respondent to comment:
"The Government needs to be clear what they want the information pack to achieve. Is it to help tenants make informed choices before starting a tenancy or is it to help the tenant manage their tenancy successfully? If it's about tenants making informed choices, they should be furnished with a copy when they view a property (either in person or online). If it's about helping to make the tenancy successful, hard copies could be signed when the lease agreement is being signed." (LA)
Whilst several consultees emphasised what they saw as the need for the pack to be issued prior to the taking on the tenancy, others queried how this could work in practice if paperwork such as safety check certificates and inventories are to accompany the pack.
Confirmation of provision of TIP
8.10 With a few exceptions, participants in focus groups and interviews preferred to have a hard copy signature from tenants to confirm that the TIP had been received. One small landlord commented that in this way confirmation was "in black and white with no grey areas". One large landlord remarked that:
"...even if the tenant acknowledges online that they have received it, I still feel the need for a hard copy confirmation of receipt. We do this already with our packs of information" (large landlord 1).
8.11 In total 24 of the written respondents reported that they were content that the process outlined in the consultation document provided adequate confirmation that the pack has been provided to the tenant before the tenancy has begun. Many others, however, expressed concern at the proposal for email confirmation of receipt by tenants. Opposition to this plan included:
- potential apathy of recipient may result in non-response (Rep)
- tenants' failure to react promptly will result in burden on landlords to chase up (Agent; Ind; LA)
- what will happen further down the line if the landlord fails to get a confirmation email from their tenant who they subsequently wish to evict? (Agent; Agent)
- will require the landlord to keep records of email receipts (LA)
- some spam filters and other anti-virus software can prevent emails from arriving (Rep).
8.12 Suggestions were made to help to address these potential problems:
- Instead of seeking confirmation of receipt of the pack, confirmation of sending it should be obtained from landlords and agents (Ind; Landlord; Landlord; Rep).
- The landlord should be encouraged to save their "sent emails" as proof that they have issued the TIP (LA).
- A "read receipt" response from tenants should be acceptable as proof of receipt (Rep).
- A penalty on the tenant for non-compliance with confirming receipt should be considered (Rep).
- Whilst the pack can be sent electronically, the signature page should be issued in hard copy and returned in hard copy (Rep).
- The TIP could be sent out electronically in advance of signing a lease, followed by the tenant signing the checklist to confirm receipt when they attend the office in person to collect the keys (agent 4).
8.13 The views described above contrasted with those of a minority of the large landlords and agents interviewed who reported that they were content with their existing protocol of obtaining on-line signatures.
8.14 A few of the written respondents argued that rather than providing each tenant with the pack, the hosting of the document on a central website for access whenever required should be sufficient in terms of information provision to tenants, and would address issues of timing of receipt, non-receipt or lack of confirmation of receipt (Agent; Agent). One respondent (Rep) argued for a hard copy of the pack to remain permanently with the property, in accordance with routine practice in social rented accommodation.
8.15 One respondent (Ind) called for the wording of the declaration on the checklist to be amended to reflect the issuing of the documents by the landlord rather than the receipt; and the removal of the word "can" in "I can confirm".
8.16 A recurring theme in the written responses was that publicity will be needed to advertise the pack and the legal requirement for providing this. It was considered that this should be addressed at both tenants and landlords. One respondent (LA) remarked that publicity will require to be on-going. Another local authority described their plans to inform tenants of the scheme using their landlord registration database.
8.17 Some written respondents sought details of how the scheme will be enforced. It was commented that landlords need to be made aware of what the penalty is for not providing the pack (Oth). One respondent (LA) considered paragraph 3.1 in the pack provides an example of how this could be done. Another commented:
"..(the scheme)...must be underpinned by a meaningful penalty to ensure irresponsible or unfit landlords cannot shirk responsibilities and that more vulnerable tenants are adequately protected" (LA).
8.18 Concern was expressed that responsibility for policing the scheme could rest with local authorities (Rep). It was suggested that the Scottish Government may wish to undertake periodic sampling of tenancies as a policing measure (LA).
8.19 It was suggested (LA; LA) that tenants should be given guidance on what action to take if they are not provided with the pack. It was also argued that protocol should be in place to enable tenants to alert their landlords if they are having difficulties reading or understanding the information in the pack (Rep).
- The majority view was for pack to be available in hard copy form, backed up with access to an online version, probably held on the Scottish Government website.
- Landlords and agents reported being used to providing information online and did not consider that the distribution of the TIP in this manner would create too much of an additional burden for them.
- The main benefits of hosting the pack on the Scottish Government website were seen as: information will be managed well; updating will be carried out promptly; information will be presented consistently across locations and landlords; and landlords will be less likely to issue out of date information. A few respondents recommended that a bespoke web portal be developed to host the pack and supporting information and advice documents.
- Many respondents queried how landlords and tenants will be informed about newer versions of the pack and updates. It was commented that parts of the draft pack are already out of date.
- Views were divided on whether the pack should be provided in advance of signing a lease. Providing the pack beforehand was seen as advantageous in giving the tenant informed choice about property and landlord standards. However, providing the pack to prospective tenants who may or may not take on the tenancy was viewed by landlords as potentially expensive. Clarity was requested on references within the TIP to timing of distribution of the pack.
- With only a few exceptions, participants in focus groups and interviews preferred to have a hard copy signature from tenants to confirm that the TIP has been received.
- Concerns were raised by some of the written respondents regarding the proposal for email confirmation of receipt by tenants. One key disadvantage was seen as the burden on landlords and agents faced with chasing up confirmation which had not been submitted. Amongst suggestions made to address this potential problem were replacing the need to confirm receipt with the need to confirm issue of the pack by landlords and agents.
- A recurring theme was that on-going publicity will be needed to advertise the pack and the legal requirement for providing this.
- Some written respondents sought details on how the scheme will be enforced and what the penalty will be for not providing the pack.
- It was suggested that tenants need guidance on what action to take if they are not provided with a pack.
9.1 The TIP received broad cross-sector support as providing a consistent and reliable source of reference for tenants. Despite the initial expectations of some that the pack might be overwhelming in its complexity, the general view was that it managed to present useful, robust information without over-burdening the reader. The length of the document and the provision of text broken down into headings, sub-headings and bulleted sections received widespread praise. The prevailing view across sectors was for the pack to be available in hard copy format, backed up with access to an online version.
9.2 Some variation in views emerged between the key respondent sectors. Local authorities in particular emphasised the importance of following common protocol and ensuring safety issues are addressed comprehensively in the pack. For example, they urged that further information be included on the condition and safety of electrical appliances and were amongst those championing the introduction of information on fire safety within the TIP. Local authorities were also at the forefront of respondents wishing to see the provision of the TIP actively enforced. Another key concern for this sector was the need to establish clear updating protocol to make sure latest versions of the pack are readily accessible.
9.3 A key focus of attention for agents and large landlords was the extent to which the TIP could be tailored to meet local needs. They could see benefits in inserting local contact information and placing more emphasis on the role of the landlord as the first port of call for queries and emergencies. They needed reassurance, however, that a customised pack would still retain its statutory basis and fulfil the legal requirement placed on landlords. They were encouraged by what they perceived to be the possibilities offered by the TIP to improve and maintain tenant-landlord relationships, by setting out clearly the rights and responsibilities of each party.
9.4 Small landlords were the most cautious of all the sectors in welcoming the introduction of the TIP. Some of the information contained in the draft TIP was new to them, and exposed a general lack of knowledge about their responsibilities as landlords. They needed more time to consider the implications of the provision of such information to their tenants. They were particularly eager to ensure that the TIP does not imply mandatory obligations for landlords (which may have financial consequences) where these do not exist. Of particular concern was what they perceived to be an emphasis on landlords undertaking tests of electrical appliances when this is not a legal requirement.
9.5 Tenants (students and others) tended to provide views from a practical perspective. They reflected on their experiences of private renting over the last year and welcomed information on issues which had cropped up, for example, liability for council tax and checking inventories. They perceived the pack to be very informative and pitched at a helpful level. The TIP had the potential to empower them to make more informed choices about taking on future tenancies, and made them more confident about negotiating and communicating with their landlord in an informed manner.
9.6 A number of overarching themes dominated:
- Balancing legal content with accessibility of message
Various commentators remarked on the fine line between ensuring the content of the TIP is user-friendly and accessible, yet maintaining the legality and accuracy of the text. Overall, respondents appeared to view this as having been achieved, but for some, there was occasional lack of clarity over what constitutes statutory obligations and what is not mandatory. This was compounded by what some respondents felt was a confusing mix in parts between legal and non legal terminology. There was some concern that the statutory requirement on landlords to provide the TIP might result in all of the contents being perceived as having statutory underpinning.
- Possibilities of tailoring the pack
As described above, a common consideration was whether, and to what extent, the pack can be tailored to reflect local circumstances. In addition, suggestions were made for sections to be removed if not of direct relevance to a particular tenancy. Assured tenancy information and details of HMO properties were highlighted in this regard. The perceived advantages of customising the pack included making it more relevant to the tenant and reducing potential for confusion. There were some concerns, however, that the opportunity for tailoring the pack could play into the hands of unscrupulous landlords who might be tempted to remove sections which refer to responsibilities which they may not be fulfilling.
- Operational issues
There were common concerns about how best to confirm that the pack has been issued by the landlord and received by the tenant. The prevailing view from landlords and tenants alike was in favour of hard copy signatures to signify receipt of the pack. Whilst landlords and agents did not consider the pack to present them with any significant extra work, they did foresee a potential problem in terms of increased workload if confirmation of receipt is to be permitted electronically and their tenants do not respond to this. The possibility of this scenario led to some favouring a legal requirement to confirm issue of TIP rather than receipt of the document.
As previously mentioned, local authorities in particular urged that systems are put in place for ready access to updated versions of the pack, leading to support for a centrally located electronic "control" document containing latest amendments.
- Timing of issue of TIP
Many respondents felt that there was a lack of clarity over when landlords will be required to provide the TIP to tenants or prospective tenants. The timing of its issue was linked, for some, with its precise purpose. If its main purpose is to enable prospective tenants to make informed choices about taking up a tenancy then some respondents pointed out that tenants should be furnished with the TIP prior to signing a lease. However, if the main focus is on helping them to manage their tenancy once in operation, then it was argued that providing the TIP at point of signing the lease will be appropriate. Benefits and drawbacks of both approaches were cited, but a prevailing view was that clearer direction is needed on when the TIP should be issued.
Email: Alix Rosenberg
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