Local Government and Communities Committee

Meeting date: Wednesday, January 22, 2020

Official Report 614KB pdf

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Subordinate Legislation

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Relevant Adjustments to Common Parts (Disabled Persons) (Scotland) Regulations 2020 [Draft]

Agenda item 2 is consideration of the draft Relevant Adjustments to Common Parts (Disabled Persons) (Scotland) Regulations 2020. The committee will first take evidence on the instrument. I welcome Kevin Stewart, the Minister for Local Government, Housing and Planning; Angela O’Brien, the Scottish Government’s housing and independent living team leader; and Alison Fraser, a solicitor for the Scottish Government.

The draft instrument is laid under affirmative procedure, which means that Parliament must approve it before the provisions can come into force. Following this evidence session, at the next agenda item the committee will be invited to consider the motion to approve the instrument.

I invite the minister to make a short opening statement.

Thank you, convener, and good morning.

I am pleased to present the draft Relevant Adjustments to Common Parts (Disabled Persons) (Scotland) Regulations 2020 for your scrutiny. If approved, the draft regulations will create a new right for disabled people who live in housing with common areas, such as communal access or a garden, to make the relevant adjustments to those areas. I am happy to advise the committee that the proposed legislation is the first of its kind in the United Kingdom.

At present, unless all owners in a development give their consent, a disabled person is unable to make any adaptations, even very minor ones, to common areas of their property. Section 37 of the Equality Act 2010 gives the Scottish ministers the right to make regulations allowing disabled people to make relevant adjustments—more usually known as adaptations—to the common parts of residential properties.

The draft regulations will allow disabled people to undertake adaptations to common areas with the support of a majority of the owners in a property, and they will prevent owners from unreasonably withholding consent. Where there is a dispute, there will be a right to request adjudication from a sheriff, whose decision will be final.

The project has been a complex one, and it has been of primary importance to me that the regulations will give disabled people a clear and workable method of securing the agreement of other owners to make reasonable adjustments within common areas.

A full consultation was conducted in 2011. At that time, 92 per cent of respondents agreed with the proposal to draft the regulations. Since then, my officials have worked with a range of key stakeholders—including the Convention of Scottish Local Authorities; disabled people’s organisations and disability groups such as Inclusion Scotland and the Glasgow Centre for Inclusive Living; and expert housing organisations including the Care and Repair Forum Scotland and Housing Options Scotland—on the requirements for the draft regulations and for a practical guide for disabled people. Feedback from a wide range of stakeholders, including the Equality and Human Rights Commission, has been taken into account by officials in developing the draft regulations.

I am happy to answer any questions on the instrument.

The draft regulations represent a very welcome development. The current position requiring unanimity must prove pretty complex.

I note that,

“In the event of a dispute, either the disabled person or any of the owners may apply to the Sheriff for a final decision.”

Could somebody clarify that?

Hopefully, that situation will not arise now, and a majority of owners will agree to the adaptation. However, in the case of a dispute, it will be for a sheriff to adjudicate, and that will be the final port of call. I will bring in Ms O’Brien in a moment to go over some of that in more depth.

It has taken us a while to get to this stage. Although the Equality Act 2010 allowed us to make the changes, we had to gain permission from the UK Government to do so. It has to be said that that was not without its difficulties. At one point, I wrote to Amber Rudd, who was then the Minister for Women and Equalities, only to find that she was being replaced, and we had to rewrite a letter to the new minister to get final permission, to get over the final hurdle and to get us to this stage. We have worked through all this for a long while.

On the point about the sheriff, I wonder whether Ms O’Brien wishes to add to what I have said.

We have consulted the Scottish Courts and Tribunals Service, which advised that the route that has been taken is the best one and is better than using the housing tribunal service, for example, because these matters are property related rather than tenancy related. The procedure should be fairly simple. As the minister has said, only in cases in which there had been no other way of mediating and resolving the issue would the sheriff’s judgment be final.

I wish to clarify something. Regulation 11 mentions the

“right to adapt rented houses”.

To be clear, will disabled people who live in rented houses be able to benefit from the regulations or will they require their landlord to take the relevant action?

They will—sorry, minister.

On you go, Angela. You have started, so you may as well finish.

That provision is for people in the private rented sector, but they would still need their landlord’s permission, in line with the provisions of the Housing (Scotland) Act 2006.

When a private tenant who requires some adaptations does not obtain the consent of their landlord, will they have the right to appeal to the sheriff?

We will have to consider that. If the person’s landlord does not give permission, it is unlikely that the adaptation will proceed. It will not proceed at the moment if the landlord does not give permission. [Interruption.]

I am sorry—I did not quite hear that answer. If a tenant with disabilities wishes to make any adaptations to common parts, will they be able to use the instrument that is before us?

The instrument relates to the other owners in the property rather than the person’s landlord. Existing legislation covers that situation: they require the permission of their landlord.

So, the draft regulations do not help a tenant with disabilities who wishes to adapt their property.

Section 52 of the Housing (Scotland) Act 2006 provides the right for a tenant to adapt a rented house. As you rightly point out, regulation 11 sets out that work that is carried out under the draft regulations is not covered by that provision. The 2006 act applies to work within the house; the draft regulations apply to the work outside the house—the common parts.

So, if a person with disabilities who is a tenant wishes to make adaptations to the common parts outside and their landlord refuses, they have no rights under the instrument that is before us.

Regulation 3 gives a disabled person who is a tenant the right to make relevant adjustments to common parts.

Tenants are covered just as much as landlords.

Yes.

Yes.

That is all I was asking about. Thanks. The matter was first consulted on in 2011, and it has taken this amount of time to address due to its complexity, as you have hinted, minister. Is that correct?

As I indicated, there was complexity in the fact that we were given the devolved powers to deal with the matter but had to seek permission to do so. That has added to the complexities. As I said, I wrote first to Amber Rudd, as the Minister for Women and Equalities, to say that we were seeking permission to introduce the regulations. Amber Rudd demitted office and we ended up having to write to her colleague—a baroness whose name escapes me at the moment—to get permission. In doing so, we moved as quickly as we possibly could.

I have not seen many relevant cases cross my desk, but those cases that I have seen—from MSPs such as Linda Fabiani—were causing great grief for folks who were unable to secure the agreement of everyone in their property to deal with the common parts. The regulations are the logical way forward to deal with such difficulties, and I hope that we will not see such issues arise again.

We are the first in the UK to move forward on this front. It is entirely logical and, I hope, will do much to alleviate some of the difficulties that a small number of folks have faced over the years.

I have a few questions, and I want to follow up on what Andy Wightman asked about. I am a bit confused about why a disabled tenant would have rights under the regulations yet a majority of owners would be needed to vote changes through.

We found that, previously, everybody in a building had to agree to changes to the common parts. I will give the example that I have seen myself. A person requires an adaptation to their building. Their landlord and most folks in the building have no problem with the change, but just one person withholds their permission, which means that the change cannot proceed. The regulations mean that the majority vote would allow the adaptation to proceed, and they build in the final decision being for the sheriff.

I know that it is sometimes difficult for us to understand why certain folk would withhold permission for changes such as that, but, unfortunately, that is the way that the world works. The regulations are intended to iron out such a situation and to get to a point of logicality, so that common adaptations can be made.

I completely understand that and that the decision has to be made by a majority of the owners. What I am trying to get at is whether, if a disabled tenant wanted changes made to common parts, they would still require the go-ahead from their landlord.

Yes, they would.

So, the request has to come from the landlord.

Let me expand on this. Many properties are in shared ownership. As you and other members are well aware, from your days as councillors, some properties that were previously local authority or housing association properties are now in shared ownership. There will be examples of housing in which a council still has the majority ownership and wants to proceed with work for a tenant who is in a council property. In the past, one owner-occupier in the building could have prevented that work from being carried out, to the detriment of all, but the regulations will iron out such situations.

Can I just clarify something? The regulations are about the owners. The tenant is, to some extent, superfluous—although that is the wrong word to use. The issue is the owner’s permission. Would a tenant who has disabilities first have to get the permission of their landlord, as they do now? Would it then come down to the owner to make the decision before the matter would go to a sheriff, if it had to go to a sheriff? Is that it in a nutshell?

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Yes. If it would be helpful for the committee, we can give you a summary of the existing legislation that covers those aspects. Would that be useful to you, convener?

That would be great. Thank you.

I will move on from that issue. Let us say that there is a proposal from a tenant or an owner who is disabled, which then goes to a vote. That vote, in itself, could be difficult to arrange, as perhaps not enough owners would be traceable. That problem exists already, regardless of the regulations. However, let us say that a majority votes in favour of the proposal. Who pays for the adjustments?

The adaptations may be paid for by the person or, as may be the case in many situations, the integration joint board that is responsible for adaptations would pay for them. In some cases, as Mr Simpson is well aware, the landlords themselves may pay for the adaptations.

Let us say that, in a private block of flats, a proposal for an adaptation is made and gets the support of the majority of owners. I do not know what kind of adaptations you have in mind, but let us say that the proposal is for grab rails up the stairs. That adaptation would have to be paid for. Surely, there must be something written down that says who pays for it.

Liability for costs is covered by regulation 9(1), which states:

“Unless the disabled person has entered into an agreement with the other owners of the common parts in relation to sharing the costs of the relevant adjustments, the disabled person will be solely liable for the costs.”

Regulation 9(2) states:

“The costs of the relevant adjustments include the costs of maintenance and reinstatement.”

However, as the committee will be well aware, integration joint boards will often pay for adaptations. The disabled person may well have entered into an agreement with the integration joint board or the health and social care partnership whereby one of those bodies pays for them. The other owners would pick up any of the costs only if they had entered into an agreement with the disabled person.

In most cases, the adaptation is likely to be paid for either directly by the disabled person or, more likely, by the integration joint board, the council or the other body that would normally do such a thing.

That is clear enough. The disabled person would pay for it unless other owners had agreed to chip in. Just so that we are clear, can you give us any examples of the kind of adjustments that might be used?

I think that it would be unwise for me to speculate on what kind of adjustment there could be. We have all come across different cases. It may be a ramp to access the property, handrails or something more complex.

Does the instrument include any descriptions of new types of adaptation, or is it just a different way of dealing with the existing adaptations that we all know about?

No. It has nothing to do with any new adaptations.

Finally, let us go back to the delay. The consultation was in 2011 and it has taken until now to introduce the regulations. Amber Rudd changing jobs does not explain that eight-year delay. Perhaps you could expand on that a bit, because that is quite a long time.

There has been a lot of to-ing and fro-ing over the piece, much of it prior to my becoming a minister. We have moved on the issue and have continued to engage with organisations across the board. We asked the UK Government to allow us to move forward, and we have eventually got to this point.

I hope that the committee will recommend approval of the instrument, so that we can get on with the job of dealing with the small number of cases in which there are difficulties, because many folks have suffered due to the inability to move forward.

Thank you.

I welcome the regulations. I have a similar question to one that was asked earlier. What is included as a relevant adjustment and where is that set out, so that people who want such adjustments know where they stand and what is possible? To what extent are the definitions future proofed? What we consider to be a relevant adjustment might have changed from what we thought a decade ago, due to people’s changing aspirations, needs or opportunities. I am thinking of things such as wheelchair access and storage and about electric wheelchairs or even electric bicycles. There have been changes in what people want.

How will the changes be publicised, so that people know what they are legally allowed to do, and who they might get to support them in the process?

Ms Boyack makes a fair point about people’s expectations nowadays, but the instrument does not cover all aspects of people’s expectations. Regulation 4 sets out that

“Relevant adjustments include an alteration or addition ... to any common parts which affords a means of access to the premises tenanted, owned or occupied by a disabled person, or ... to make the premises suitable for the accommodation or welfare of a disabled person.”

We have been specific that the regulations are about allowing entry. From my mailbag, I know that in certain properties there are tensions around things such as where disabled buggies are parked and all the rest of it. Adaptations in that regard might not be necessary to provide access, so that is a different matter.

We need to look carefully at what future requirements will be, and we are doing so in our “Housing to 2040” consultation. Technology changes, as does people’s use of things, so we have to ensure that what we build is future proofed to allow for that. The SSI does not cover all aspects of the issue; it is about access to and egress from a property, to which everyone should have a right, using whatever means are possible, such as handrails, ramps or whatever.

That is a helpful clarification.

The number 1 issue for people is getting in and out of their home but, once they are outside their home, how do they get anywhere else? Will that be picked up in subsequent regulations? Is the Government working on that?

I am here to talk about the regulations that are before the committee—

Yes. Let us stick to the SSI.

Obviously, the Government continues to look at all aspects of equality. That is why, in recent times, so much effort has been put into producing plans for how we deal with some of the difficulties that disabled people face.

As others have said, the SSI is welcome. We have discussed the potential to ensure that individuals have good quality of life and can enter and leave their premises. That is a step in the right direction. You indicated that integration joint boards would fund some of the adaptations that individuals require, which will have implications for the boards and their budgetary situation. When adaptations are requested for individuals, that would go forward in line with normal procedure: the IJB would decide whether the application was acceptable, and then the individual would get a rail or an adaptation to the garden, or something along those lines. What financial implications do you anticipate that boards will then have to endure in order to ensure that the adaptations are taken forward and supported?

As I have said to the committee previously, the best thing that integration joint boards can do to save money and prevent the human costs that occur when adaptations are not put in is to deal with all of that as preventative spend. I have made no bones about that at the committee and elsewhere. At times, I have been frustrated in my constituency when I have had to argue with the health and social care partnership that, by doing a certain thing, it is likely to save a lot of money. Before we reach the point when a person is using an adaptation, it is likely that an occupational therapist will have agreed what is required to meet that person’s needs. One would hope that, once an OT has made a recommendation, the resource would be found to do it.

To a degree, we might be overcomplicating the issue. I am always glad to be scrutinised but, in all honesty, I cannot answer every question today about every aspect of health and social care partnerships and how they resource such things, when I am dealing only with the regulations. However, I reiterate that spending money on adaptations saves health and social care partnerships a lot of money, and it saves a lot of grief for the folks who need the adaptations.

It is fair to ask about the knock-on effects, but we are here to discuss the SSI.

Minister, you mentioned in your opening remarks that you had sought the permission of the UK Government. Section 37(3) of the Equality Act 2010 requires you to consult a minister of the Crown. I assume that the UK Government never implied that it could withhold permission—surely your statutory duty was merely to consult.

I will get back to Mr Wightman and the committee about the full detail of that. Such issues are never easy, and logic sometimes goes out the window. I am more than willing to share the timeline of my communication with UK ministers on the issue.

That would be interesting, because there is a wide range of powers that ministers have and on which they are required to consult. It would be useful to get to the bottom of what that consultation is. I am interested in your experience of that.

I am more than willing to share that with the committee.

I would like to go back to an earlier issue. Alterations on the part of a tenant are governed by their lease agreement with the landlord. If the tenant is disabled, I imagine that there would be a provision requiring the landlord to grant consent, and that the consent should not be unreasonably withheld. That would be the normal legal position in Scots law.

I think that we have exhausted the questions—although not the minster, I hope.

We move on to agenda item 3, which is the formal consideration of motion S5M-20243.

Motion moved,

That the Local Government and Communities Committee recommends that the Relevant Adjustments to Common Parts (Disabled Persons) (Scotland) Regulations 2020 [draft] be approved.—[Kevin Stewart]

As members have no comments, I have one follow-up question that I should have asked earlier. Sarah Boyack spoke about publicity. Will you ensure that the public know about the change to the law?

I will have discussions with officials about how to move forward on that. We will make good use of bodies such as Housing Options Scotland, which is good at getting the word out when there is a change in the law. We will consider not only what we can do but what help we can get from other bodies that make contact with a lot of disabled people.

Thank you. [Interruption.] I hope that that is not my phone ringing. Oh! It is. [Laughter.]

The question is, that motion S5M-20243, in the name of the Minister for Local Government, Housing and Planning, be agreed to.

Motion agreed to,

That the Local Government and Communities Committee recommends that the Relevant Adjustments to Common Parts (Disabled Persons) (Scotland) Regulations 2020 [draft] be approved.

The committee will report on the instrument in due course. Do members agree to delegate authority to me, as convener, to approve a draft of the report for publication?

Members indicated agreement.

I suspend the meeting briefly to allow a changeover of officials.

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Meeting suspended.

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On resuming—