Social housing: the ground rules change
Part 2 of the Housing (Scotland) Act 2014 is finally to come into force next year, making important changes both as regards allocation of, and tenancy agreements concerning, social housing
Whilst the Housing (Scotland) Act 2014 received Royal Assent on 1 August 2014, it has recently been announced that some of the key tenancy management provisions in the Act will come into force next year, in 2019.
On 1 May 2019, we will see the entry into force of ss 3-11 and 14-15 in part 2 of the Act. These sections relate to the allocation of social housing, short Scottish secure tenancies, criminal conviction evictions, and recovery of possession of properties designed for special needs.
Six months later, on 1 November 2019, ss 12-13 of the Act, relating to assignation, subletting, joint tenancies and succession to Scottish secure tenancies, will come into force.
This article summarises the changes being given effect in 2019 and outlines the key issues which will be of interest to registered social landlords in Scotland.
Changes in force from 1 May 2019
1. Allocation of social housing
The 2014 Act alters the current rules regarding the allocation of social housing by redefining the priority allocation categories. It introduces an obligation on social landlords to give reasonable preference to existing tenants residing in an under-occupied house when allocating housing, and removes the statutory priority status for those occupying overcrowded houses, or houses which do not meet the tolerable standard, or those with large families.
In considering housing applications, the legislation allows social landlords to take account of any heritable property (including the value of such heritable property) owned by the applicant or a person who may reside with them – except in situations where, for example, applicants may face abuse or danger to their health from occupying their property, or where they cannot access it.
The legislation requires social landlords to undertake a consultation process regarding proposed changes to their allocation policies to consult with, for example, applicants, tenants and registered tenant organisations. The allocations policies must take account of any local housing strategy and any guidance or regulations issued by Scottish ministers.
Section 6 of the Act outlines a number of instances in which social landlords may suspend applications for housing, for example where an applicant has rent arrears or where there is a history of antisocial behaviour. This also applies to circumstances in which the applicant has been convicted of an offence in the locality, or where they have acted in an antisocial manner in the process of making the application, either in the locality of their house or to an employee of the social landlord.
2. Short Scottish secure tenancies
The 2014 Act introduces a new ground for granting a short Scottish secure tenancy – where the house is to be let expressly on a temporary basis to a person pending the making of arrangements in relation to heritable property owned by the person, or a person who it is proposed will reside with that person, which will allow the person’s housing needs to be met.
Under s 7 of the Act, social landlords may convert a Scottish secure tenancy to a short Scottish secure tenancy, or create a new short Scottish secure tenancy, in the event of a tenant or persons living with them or visiting them having acted in an antisocial manner within the past three years.
The Act does, however, provide some protection for those antisocial tenants, allowing them time to establish an improvement in their behaviour, by changing the duration of their short Scottish secure tenancy from six months to 12 months, with a possible six-month extension.
Should a landlord seek to terminate a short Scottish secure tenancy, it must notify the tenant of its reason for doing so, and the tenant may, within 14 days of the date of the notice, ask the landlord to review its decision.
3. Criminal conviction evictions
The 2014 Act introduces a new requirement, that the notice of intention to raise proceedings for recovery of possession on the grounds that the tenant, or a person residing in or visiting the house, has been convicted of using the house for immoral or illegal purposes, or an offence punishable by imprisonment committed in, or in the locality of, the house, must be served on the tenant within 12 months of (a) the day on which the person was convicted of the offence forming the ground for recovery of possession, or (b) where that conviction was appealed, the day on which the appeal is dismissed or abandoned.
4. Recovery of possession of properties designed for special needs
Section 15 of the 2014 Act makes a slight change to the grounds for recovery of possession of a property adapted for special needs, to include situations where the tenant did not require the adaptation in the first place (rather than only where the tenant “no longer” requires the adaptation). This ground is still subject to the social landlord providing alternative suitable accommodation to the tenant.
Changes in force from 1 November 2019
1. Assignation, subletting and joint tenancies
Any tenant seeking to assign their tenancy, sublet it, or add to it a joint tenant is subject to a 12-month period of qualification. In order to be successful in applying to do any of the above, the tenant or the person in question must have notified the landlord that the proposed assignee or joint tenant is residing in the property no less than 12 months previous to the application.
There are transitional arrangements in place, which provide for tenants to give notification of the living arrangements in the 12 months prior to 1 November 2019 – which means that prior to 1 May 2019, they could benefit from the existing six months' residency requirement (without having to give prior notice), but after that date they would need to give 12 months' prior notice.
With regard to subletting, the tenant requires to have lived in the property in the 12 months leading up to the application.
The Act further stipulates instances in which social landlords may veto the assignation or subletting of a tenancy. These include where the assignee would not have been given reasonable preference under the landlord's allocations policy, or where the assignation or subletting would result in the property being underoccupied.
With regard to the death of a tenant, the Act increases the qualifying period of succession from six months to 12 months for cohabitees, and also extends the ability to succeed to family members and carers.
What should social landlords be doing next?
The commencement order places an obligation on social landlords to notify, prior to 1 November 2018, their Scottish secure and short Scottish secure tenants in writing of the changes to their tenancy agreement which will arise from the commencement of part 2 of the 2014 Act. It is anticipated that the Scottish Government will provide a template letter or information leaflet for social landlords to send to tenants.
The current model Scottish secure tenancy agreement was published by the Scottish Government in 2002 to coincide with the Housing (Scotland) Act 2001 coming into force – approximately 16 years ago. There is an expectation that the Scottish Government may release a new model tenancy agreement to reflect the changes coming into force in November 2019, as well as perhaps the recent data protection changes brought about by GDPR.
Social landlords cannot unilaterally make changes to tenancy agreements with existing tenants (except in relation to the amount of rent or service charges) without the tenants' consent. Accordingly, any new form of tenancy agreement would need to be used for new tenants only, and existing tenancy agreements can only be changed with the written, signed agreement of existing tenants. We would strongly recommend that legal advice is sought if a social landlord is considering altering its standard form Scottish secure tenancy agreements.
Even without any explicit changes to existing tenancy agreements, the legislative provisions coming into force next year will automatically, by law, override and supplement the tenancy agreement and inform how it is interpreted. Social landlords will therefore need to ensure that tenants are clear about their tenancy rights under the new regime.
It is crucial for social landlords to begin to look ahead to what they need to do prior to entry into force of the part 2 provisions, and timetable for the review, consultation and implementation of new policies and procedures to address the changes.
Ahead of the commencement dates, social landlords should be reviewing their housing management policies and procedures, including their allocations policy, to bring them into line with the new legislation, and consulting on them in accordance with the Scottish Housing Regulator's directions relating to tenant engagement and participation in the Scottish Social Housing Charter. It is anticipated that the Scottish Government will publish additional guidance over the next year, which will assist social landlords with this process and will inform the new policies.
Social landlords will also want to schedule in training for their board, management team and frontline staff on the new policies, procedures and legislative changes, to ensure that everyone is well informed and up to date.
Collette Miller is a senior associate with Harper Macleod LLP