Instruments subject to Affirmative Procedure
Scottish Secure Tenancies (Repossession Orders) (Maximum Period) Order 2012 [Draft]
Although the order appears to prescribe a maximum period of six months within which an order for recovery of possession may have effect, that is dependent on decree being extracted promptly. Any delay in extracting decree by the landlord will have the effect of postponing the last day on which the order may have effect against the tenant.
Does the committee therefore agree to refer the order to the lead committee so that it can consider its practical effect? Although that is not a formal reporting matter, the lead committee may wish to consider it further. In doing so, we should note that that will not form part of the committee’s annual statistical report on SSIs.
Members indicated agreement.
Scottish Secure Tenancies (Proceedings for Possession) (Pre-Action Requirements) Order 2012 [Draft]
There are five matters in respect of which the committee may wish to draw the order to the attention of the Parliament on reporting ground (h), because its meaning could be clearer in five respects. Clarity is important, as the order is intended to set out steps that landlords of Scottish secure tenancies must demonstrate that they have taken before they can bring proceedings to recover possession of their property in cases in which the tenant has not paid the rent or other sums that are due.
First, the meaning of
“illustrative indication of legal expenses”
in article 2(2) could be clearer. From the terms of article 2(1)(b)(ii), it appears that the intention is that tenants should be made aware of the expenses that a landlord will be able to recover from them, should the landlord be successful in obtaining an order for recovery of possession. However, the landlord’s recoverable, or judicial, expenses are a subset of their legal expenses as a whole.
Secondly, it is not clear what a landlord must do in order to “encourage” a tenant to take a certain course of action for the purposes of articles 4(1)(b) and 5(1). Although the Scottish Government indicates that that is a lesser standard than obliging a landlord to “require” a tenant to do something, the ordinary meaning of the word “encourage” suggests more than requesting that the tenant do something, and it is not clear what that entails.
Thirdly, it is not clear whether it is for the landlord or the tenant to ascertain whether a particular debt advice agency is an “appropriate debt advice agency” for the purposes of article 4(1)(c).
Fourthly, it is not clear, for the purposes of article 5(1), who “relevant housing benefit staff” are, or even who employs those staff. That is of particular significance, given that, under the provision, tenants are to be encouraged to waive their usual right to confidentiality so that these unascertained persons may discuss the detail of housing benefit applications with landlords.
Finally, under article 5(1), written authority will require to be addressed to the local authority, as data controller, in order to be effective. In respect of the references in article 5(1) to “relevant housing benefit staff”, it is not clear that that is what is intended, although it does not appear that the wording of article 5(1) expressly precludes the possibility that a landlord could obtain effective written authority.
Does the committee agree to draw the order to the attention of the Parliament on reporting ground (h) in respect of those five matters?
Members indicated agreement.
I have some questions about clarity. The use of words such as “illustrative”, “appropriate” and “relevant” seems to leave the order wide open to interpretation. I am particularly concerned about the reference that article 4(1)(c) of the order makes to the landlord advising the tenant to seek assistance from an “appropriate debt advice agency”, which is addressed in recommended action 1)c) of the legal briefing.
What guidance is available to the appropriate committee or the Government to clarify what “appropriate” means in that case? I am concerned that what might be an appropriate debt advice agency for the landlord might not be an appropriate debt advice agency for the tenant. In the current financial environment, I believe that that opens a door that I do not want to go through.
John Scott may have a similar question.
I have similar concerns about the second and fourth points, which relate to the use of the word “encourage” and the phrase “relevant housing benefit staff”. The convener has read into the record what those concerns are, and I endorse his doing so. Individually, the five instances of lack of clarity are not significant, but if one considers all five of them together—particularly the second and fourth instances—one has to wonder whether the Government should not go back to the drawing board and redraft the order. I am certainly no draftsman, so it is self-evident that I could not do any better, but we have to ask whether the order is fit for purpose.
I think that that is a question for others to answer.
I wonder whether our legal adviser, Judith Morrison, can comment on Chic Brodie’s point about the use of such words in statute.
Judith Morrison (Legal Adviser)
Yes, I can do that. The Scottish Government has accepted that there is some potential uncertainty about who is to be the judge of what is an “appropriate debt advice agency”. It has advised that its intention is that it is for tenants to choose for themselves which advice agency to consult, although landlords should be able to advise them of those that they may wish to approach. Statutory guidance will be produced to accompany the scheme. In that guidance, the Government will give further advice on how the provision is to be interpreted.
14:45
We talk about registering landlords, but is there an argument for registering appropriate debt service agencies? Again, I know that that would be a decision for the appropriate committee. What would be considered to be a bona fide agency?
I suggest that the answer to that question necessarily lies with a policy committee, so we can fairly address the question to them. However, it is not a question that we can hope to answer.
Okay. I ask whether we can just raise that question with the committee concerned and ask it to have a look at the issue.
Thank you.
I note that there is an apparent policy intention, as disclosed by the Scottish ministers’ response to question 5, that landlords may seek a preliminary indication of the outcome of a housing benefit application from the persons charged with determining the application, notwithstanding the fact that to give such an indication appears to involve prejudging the application. Of course, there is a general point of law in there.
Does the committee agree to refer the practical effect of the order to the lead committee? Although that last point is not a formal reporting matter, the lead committee may wish to consider it further.
Members indicated agreement.