Chamber and committees

There is a great deal that we are actively looking at in the development of the housing bill and the consultation on the new deal for tenants. I welcome any constructive proposals for the ideas that we should be considering for inclusion in that bill.

I am not sure whether Miles Briggs is referring to correspondence that he has had with me; it does not immediately ring a bell. It might be that other ministers have dealt with it, and I am not going to try to answer on their behalf correspondence that I have not seen. If Miles Briggs wants to write to me about it, I will certainly explore that matter and discuss it with other colleagues who might have already considered his correspondence.

The fundamental point about the Coronavirus (Reform and Recovery) (Scotland) Bill is that is gives us the opportunity to make permanent some provisions that were introduced on a temporary basis during the pandemic. That is the fundamental opportunity that it presents. Of the four provisions that I mentioned earlier in discussion with Mark Griffin, the two that the bill deals with have clearly demonstrated themselves to be positive in terms of the impact that they have on people’s lives by resolving some disputes between landlords and tenants. They are also proportionate measures that can help the Government to achieve its policy objectives beyond the pandemic. The bill is the opportunity to take the relatively modest step of making permanent those successful temporary provisions.

On the wider question of other considerations that we need to address, the Government will, of course, be open to constructive suggestions from all sides as we develop the next piece of housing legislation.

I heard the discussion during the first evidence session. If I remember rightly, John Blackwood from the Scottish Association of Landlords said that a landlord would be poorly advised to pursue a request for eviction with the tribunal if they had not gone through the pre-action protocol, because there is an expectation that the tribunal would consider whether the landlord had complied with it.

We are looking to make permanent the temporary provisions that were put in place during the pandemic, because that will be the simplest and cleanest way to achieve continuation. At some point in the future, perhaps in the housing bill in year 2 of the session, we might be able to consider whether there are wider views. If the evidence that we gather between now and then shows that the protocol should be amended to create a stronger legal duty to ensure compliance, we could consider that. At the moment, making the current temporary provisions permanent is the cleanest and simplest way to ensure that we retain the additional level of protection.

It is pretty clear that we can have confidence that any landlord who feels the need to pursue an eviction, and who genuinely believes that they are acting reasonably in the circumstances, will have gone through the pre-action protocol steps in the first place, in order to demonstrate to the tribunal that their actions have been reasonable.

It is up to the tribunal to decide what circumstances it takes into account, which will determine how long it might take for a case to be considered. It is possible that it will take longer for some cases to be considered, if there are exceptional or unusual circumstances. However, that will not always be the case.

The evidence that we have to date suggests that the effect will be modest. The most important thing is to ensure that most tenancy exits do not go to the tribunal. We need to recognise that, and acknowledge that the intention of the provisions is to encourage negotiation and agreement between tenants and landlords when there is a problem. If we are successful in doing that—I think that the evidence shows that the temporary provisions have been successful—any additional workload burdens would be manageable and the effect would be modest.

The financial memorandum that accompanies the bill explores the costs to the tribunal in detail. On there being quantifiable costs to discretionary decision making, it is worth noting that the introduction of the pre-action protocol, and the obligation of the tribunal to consider a landlord’s compliance with it before making its decision, will again reinforce that it is in the landlord’s best interests to engage with their tenant early to prevent arrears from building up in the first place. Again I note that that early engagement could prevent altogether the need for eviction proceedings, which ultimately would reduce the costs for the tribunal.

The Scottish Association of Landlords has set out in its submission some figures that suggest that the number of cases in which the outcome was altered as a result of the mandatory grounds being made discretionary under the emergency legislation was very small. It is important to recognise, however, that the impact in that small number of cases was extremely significant. Even if only a small number of people get different outcomes in their tribunal cases, the impact on their lives will be extremely significant.

The deeper point that I will make is that the bigger impact, which is perhaps harder to measure, relates to cases that do not go to tribunal in the first place. For example, a landlord might previously have thought about going to the tribunal on grounds that would have resulted in a mandatory determination for an eviction order. If the determination was discretionary, the landlord might reach the view that they had not taken a reasonable course of action and that the individual reasons for their seeking an eviction were not reasonable, so they might be more likely not to proceed with eviction in the first place.

This is related to the point that I made to Graeme Dey. We are looking to maximise the opportunities for negotiated outcomes, reasonable settlements and actions being taken that sustain rather than end tenancies. Whether we are talking about requiring compliance with the pre-action protocol and taking reasonable steps to engage, or ensuring that landlords know that they are more likely to get some kind of resolution if they try to sustain a tenancy instead of going straight for eviction, we are likely to have a sector that sees the resolution of any such problems as the first option.

As I have said, the approach is already good practice in the private rented sector. Landlords who follow best practice will already be taking such steps and will not pursue eviction if they think that there might be a chance of a tribunal considering the pursuit to be unreasonable.

That might be a little hard to quantify with precise or objective numbers, because the nature of pre-action protocols is that they are used prior to cases appearing before the tribunal. As such, we do not necessarily have official statistics on when actions have led to successful resolution of a problem.

However, there has been an overall reduction in the number of eviction cases coming before the tribunal during the pandemic, so it is fair to say that the provision has contributed to supporting tenants and landlords in achieving positive resolutions to problems and in sustaining tenancies. For example, when tenants have been able to secure additional sources of financial support as a result of signposting by landlords during the pre-action protocol process, that support will have helped to resolve problems.

The committee will be well aware of the tenant hardship grant fund, which is a source of additional support that was available during the pandemic. There are also discretionary housing payments and other forms of money and financial advice that tenants can access from the voluntary sector or community organisations. It might well be that we never have to count cases of landlords actively signposting tenants to support. We should see that as a positive thing.

We have, of course, engaged extensively on the provisions in the bill. In my opening remarks, I touched on the consultation that took place. It is possible that making all eviction grounds discretionary could lead to some increase in costs for landlords in certain circumstances—for example, as I mentioned earlier, if the consideration of a particular case takes a little longer due to the need to take individual circumstances into account. We think, however, that that is highly unlikely to lead to significant additional costs for landlords.

On the pre-action protocol provisions, the Scottish Association of Landlords pointed out during the consultation that many landlords already take that course of action to support tenants in rent arrears. Compliance with those provisions would not increase costs at all or even increase the amount of work or the action that is necessary for those who follow best practice. It would bring the additional advantage of encouraging and requiring good practice by those who have not previously taken that approach, but we do not believe that the provisions would create any significant additional costs for landlords.

In the European context, there is always a mix, but the mix is different in different places. Germany has a much bigger private rented sector, but it has had in place for quite some time some of the rights and protections that we will explore and develop in the year 2 housing bill.

In some European countries, there is little difference in the rights and protections for tenants between what we call the social rented sector and the private rented sector. In other places, the distinction that is made over who the housing provider is—whether that is a private or a social organisation—does not have the significant impact in producing a different experience for tenants that it has in this country. The consultation on the new deal for tenants and the development of the year 2 housing bill will be informed by consideration of all the examples and experiences from other contexts.

That is where what I said earlier about striking a balance between the interests and rights of landlords and tenants comes in. The tribunal will take into account the circumstances that pertain to landlords and tenants. Having some grounds where a tribunal is required or mandated to produce an eviction order shifts things heavily in one direction—it overbalances things in terms of not taking account of the tenants’ circumstances. However, giving the tribunal discretion does not take things to the other extreme; rather, it sets things in balance and ensures that the circumstances that apply to the tenant and the landlord are taken into account fairly.

I think that when I used the word “modest”, I was referring to any increase in the cost of consideration of individual cases. We are all very aware, as some of your witnesses in the earlier session pointed out, that there is a significant concern across a number of local authorities about the scale of rent arrears that have built up during the pandemic. That is why we are so committed to ensuring that a range of financial support is available.

There is the tenant hardship grant fund and the £82 million that has been provided for discretionary housing payment to support mitigation of the bedroom tax and housing costs, and there is additional funding to local authorities to ensure that they have the resources available to support people in their areas. There is also a range of support and intervention measures in response to the pandemic itself, and there is additional funding that has been passed in this year’s budget to ensure that we are supporting people with their housing costs.

There is no getting away from the fact that the financial impact that the pandemic has had on people has not yet fully played out. This is happening in the context of the wider cost of living crisis, so it is going to be a challenging period for tenants and for landlords, as well as for the organisations that are working to support them.

However, I think that the permanence of the provisions in the bill will help to ensure the greatest opportunity to resolve disputes between landlords and tenants constructively and to avoid the need for eviction proceedings wherever that can be done and tenancies can be sustained.

Obviously, that is a hugely important question, and we have actively considered it in Government. There were four key measures during the pandemic, two of which we are discussing making permanent today. As Mark Griffin said, the others were the eviction ban, which came to an end last year as areas dropped out of tiers 3 and 4, and the extended notice periods, which came to an end at the end of this month. I would however note that we have put in place transitional protection for tenants who are already facing action.

The emergency legislation that was put in place was a temporary public health protection measure. In introducing legislation of that nature, the Government needs to demonstrate the requirement for it. That legislation was introduced on the basis of public health protection and was aimed at ensuring that people could stay safe in their homes for as long as possible in the unprecedented circumstances of the pandemic.

Just because a measure is not being retained right now does not mean that the logic of it is lost. The on-going consultation on a new deal for tenants asks for views on winter evictions and on reviewing the grounds for eviction in the private residential tenancy. The experience that we have had during the pandemic will inform those reforms. However, provisions that we introduce need to be demonstrated as necessary and proportionate on their own terms, so simply extending the measures when the pandemic circumstances do not pertain is not an automatic given.

We believe that, in the case of the two provisions that we are seeking to make permanent, the experience is clear that that will have an on-going value and that it is proportionate and reasonable as a means of achieving the Government’s legitimate policy objectives of reducing the gap in outcomes between the private and social rented sectors and raising standards across the private rented sector. If we seek to make changes in relation to the issues that Mark Griffin has raised, we will do so as a result of the consultation that is under way and the proper development of a full bill on housing in year 2 of this parliamentary session.

I hope that that is enough to answer Mr Griffin’s question.