Chamber and committees

Meghan Gallacher raises an issue that SLE has raised directly with the minister. He has offered to work with others to see whether something can be done on the issue before stage 3. It is a very complex issue—Meghan Gallacher has just laid out but one example of that—which requires careful consideration and, potentially, multiple changes in multiple pieces of law. That is why the minister is keen to carry on that conversation with SLE. We would, of course, be happy to discuss the matter directly with Meghan Gallacher as well.

I will come back to Ms Gallacher in writing about the consultation, but it will be launched this autumn. I am happy to reflect on the points that she has raised and to get back to her once I have had a further opportunity to speak to Paul McLennan, who leads on the issue, about where the drafting of the consultation has got to, and what its scope will be. If she will allow me to come back to her in writing once I have had those discussions, I will be happy to do so.

Amendments 552 and 555, in the name of Jamie Halcro Johnston, seek to restrict policy making in any future attempt to regulate heating systems. The Government’s approach has long recognised that there might be a need for secondary heating systems, particularly in rural and island communities, and our approach protects the use of direct-emission secondary heating systems if required. For example, the recent new build heat standard already allows for secondary heating systems of the kind specified in amendment 552. It should be made very clear that a vote against that amendment is not a vote against wood-burning stoves or other secondary heating systems, as the amendment is not needed to protect their use.

The fact is that amendments 552 and 555 are simply unnecessary. My concern with them is that they could tie the hands of future Governments, particularly where there remains scope for technological advancement. That is not appropriate, and therefore I cannot support the amendments.

The consultation for both the social and private rented sectors will be held in the current calendar year. I will come to this later in my comments on the group, but it has been raised in the conversations that colleagues have had with me—and this is demonstrated in the amendments that have been lodged—that the powers exist in many places but they are not being used, for a number of reasons. I am keen to get to the details of why they are not being used. In this case, I believe that a change to the primary legislation is required, with timescales, to ensure that the standards requirements are being implemented. In other cases, a non-legislative approach might be taken, but in this case I am convinced that we need to change the legislation to make the changes happen that we all want to see.

I am happy to carry on having these conversations with Maggie Chapman in the run-up to stage 3 if she thinks that there is a flaw in what is being suggested by the Government at stage 2, or a gap in the proposals that would create problems for tenants. I have tried to set out that we believe that it is important that there is a process in place that is based on the rent cap and does not have a subjective process attached to it. However, with that caveat, if there are further discussions that we can have ahead of stage 3, I would be happy to carry on with those. The Government has been clear about the importance of the rent cap in providing clarity to landlords and tenants.

Amendment 139, in the name of Emma Roddick, and amendment 238, in the name of Maggie Chapman, would both require a rent officer to impose a financial penalty on a landlord that would require the landlord to pay a sum to the tenant if the rent officer were to find that a rent increase notice that was referred to them for verification proposes an increase above the level of the rent cap. The amendments would provide for different financial penalties, either three times the amount that was requested by the landlord above the rent cap or an amount of £10,000.

Amendment 140, in the name of Emma Roddick, and amendment 239, in the name of Maggie Chapman, are similar. The amendments relate to cases in which a landlord or tenant refers a rent officer’s determination under section 43M of the Private Housing (Tenancies) (Scotland) Act 2016 for review and the rent officer finds that the proposed rent is above the level of the cap. In those circumstances, the rent officer would be obliged to issue an order for the landlord to pay a penalty to the tenant. The amendments would provide for different financial penalties: either three times the amount or an amount of up to £10,000.

The amendments do not include a defence of reasonable excuse for a landlord, which may have included making a genuine error. There would also be no right of appeal to an independent impartial tribunal, nor would there be discretion for the rent officer to not impose a penalty when they consider that a penalty is not appropriate.

In addition, rent service Scotland is a non-judicial body and rent officers are arguably not equipped to make a judgment on the culpability of a landlord or on the appropriate level of penalty. As such, there would likely require to be a further level of consideration, potentially by the First-tier Tribunal, which would create a far more complex and costly process than is set out in the amendments.

Although I have concerns about the details of the amendments, which mean that I cannot support them, I understand the concerns that the members are seeking to address through them. I urge Emma Roddick and Maggie Chapman not to move their amendments. Instead, I offer to work with them, similar to my offer on amendments 137 and 237, which were debated in an earlier group. I would be happy to discuss the issues further, ahead of stage 3, with a view to reaching an agreement on what might be appropriate. I hope that that would address the concerns that they have quite rightly raised in committee today.

Finally, amendment 240, in the name of Maggie Chapman, would require the First-tier Tribunal to impose a financial penalty on a landlord, ordering them to pay a sum to the tenant if the tribunal finds that the initial rent under the tenancy was set too high or that the first rent increase was introduced too early. The penalty would be up to £10,000. Again, there is no defence of reasonable excuse for a landlord who might have made a genuine error, and there is no discretion for the tribunal not to impose a penalty where it considers that the penalty is not appropriate. For those reasons, I cannot support the amendment, and I urge Ms Chapman not to move it.

I urge Emma Roddick, Rachael Hamilton and Maggie Chapman not to move their amendments in this group and instead to work with me ahead of stage 3 to consider whether we can find consensus on possible changes to penalties on landlords who do not comply with their duties under this part of the bill.

I very much agree with Mr Simpson’s premise that something further needs to be done. That is exactly why the Government is committed to a consultation this calendar year, which will include details of hazards and timescales. We have had that power in the past. What we will come to, in a myriad of points during this grouping in particular, is that, for whatever reason, those powers are not being enforced to adequate standards. That is why the Government will bring forward a list of hazards and timescales as per the work that is being done in England. We are not just saying, “There is a power,” and doing nothing about it; we are undertaking a consultation with further details, to ensure that that happens.

Amendments 231A, 443, 444, 448 and 446 all seek to remove Scottish ministers’ discretion as to how to apply Awaab’s law in the social and private rented sectors. That element of discretion is needed to enable us to consult stakeholders and engage with the UK Government to ensure that private tenants in Scotland are at least as protected in relation to repairs as those in England and Wales are. I am happy to work with Graham Simpson to identify any issues that he has with the proposals for Awaab’s law, but we need to take cognisance of the work that has been happening in England as the UK Government moves through the consultation process on the complexity of that work and of our obligations, to make sure that we get this right on behalf of tenants.

Amendments 221 and 222, in the name of Mark Griffin, look at more general repairs in social and private tenancies. Amendment 221 would, via regulations, oblige Scottish ministers to confer a right on a tenant in a social tenancy to have certain prescribed hazards repaired. It would also amend a social landlord’s repairing obligations to provide that they must

“ensure that there are no prescribed hazards”

within the house. Amendment 222 would amend the repairing standard in the 2006 act to oblige a private landlord to ensure that there are no current or prospective prescribed hazards in the house.

Amendments 221 and 222 would oblige landlords to ensure that there are no prescribed hazards in the property, but the landlord might not be in a position to know whether such hazards are present. An obligation to remedy defects and hazards once they are known would be more achievable. The amendments also cut across the existing rights of social and private tenants to have repairs carried out, thereby creating a confusing regulatory landscape for landlords and tenants. As those issues are already provided for in law, I cannot support those amendments. Again, I point Mr Griffin to the work that is being undertaken on Awaab’s law in both the social and private rented sectors.

Amendments 257 and 267, in the name of Maggie Chapman, would provide that rent for private residential tenancies in a rent control area cannot be increased unless the property

“meets minimum standards specified by the Scottish ministers in regulations.”

Similarly, amendment 442, in the name of Ariane Burgess, would place a duty on ministers to create, through affirmative regulation, a new lettable standard that all residential properties must meet.

Although I agree with Ms Chapman and Ms Burgess on the importance of all rented properties complying with appropriate standards, statutory standards and enforcement measures are already in place for rented properties. The repairing standard already obliges landlords to keep their property to specified standards, with enforcement mechanisms being available should they fail to do so. The tolerable standard applies to all houses in a local authority area. The Scottish housing quality standard applies to properties in the social rented sector. There are existing enabling powers that could be used to enhance those standards where required.

I absolutely recognise the point that you are making, and I would be happy to provide that information in writing to you and the committee following today’s discussions.

Amendments 477 and 479, in the name of Paul Sweeney, would oblige Scottish ministers to provide a process by which a tenant may request a local authority to buy the house that they rent if that house does not comply with housing standards. Although I support the principle that private rented homes should be of good quality, the proposed amendments could lead to the local authority purchasing a substandard property instead of enforcing housing standards. There is no need for a statutory right for a tenant to request that a local authority exercise its existing powers to make a compulsory purchase of a property; tenants can approach their local authority and make such a request at present.

There are also existing enforcement mechanisms for local authorities when a property fails to meet the tolerable standard or the repairing standard, both of which I have talked about in relation to previous amendments in the group. Where a landlord has failed to comply with housing standards, it would be more appropriate for those standards to be enforced than to expect the local authority to purchase the property. Although I appreciate the intention behind the amendments, I consider them to be unnecessary and I urge the member not to move them. However, as with previous amendments in the group, I am very happy to work with Mr Sweeney to see whether there is a non-legislative approach that can be taken to achieve his aim of greater connectivity between compulsory purchase orders and tenants knowing their rights in that area. Indeed, I thank him for the conversations that we have already had on that point.

Amendment 489, in the name of Ariane Burgess, aims to enable the First-tier Tribunal for Scotland to consult an independent person when considering whether a landlord has complied with certain aspects of the repairing standard. Although I understand the reasoning behind the amendment, what is proposed is already provided for in law. The First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Regulations 2017 already give the tribunal very wide powers to obtain expert evidence. In addition, paragraph 2 of schedule 2 to the 2006 act enables the tribunal to request and consider a report from a third party. Therefore, I cannot support the amendment, given that what is proposed is already amply provided for in law.

Amendment 490, in the name of Daniel Johnson, would impose an obligation on an owner or occupier of the property in a tenement building to take steps to ensure that utility companies have access to common parts of the tenement for the purpose of maintenance, repair and installation work. Utility companies already have access rights under other legislation. The Electricity Act 1989, sections 17 and 19 of the Tenements (Scotland) Act 2004 and secondary legislation that was made in relation to the 2004 act already provide the framework for access to areas of tenements for maintenance purposes, including access for gas and heating utility companies to install services. Accordingly, I do not believe that the amendment is necessary, and I ask Mr Johnson not to move it.

In a rent control area, a landlord will be prevented from increasing the rent under a private residential tenancy for the property more than once in a 12-month period, even if a new tenancy is granted in that time. Accordingly, tenants who are considering entering into a lease in a rent control area should have the information that they need to make informed decisions about renting a property. Therefore, the Scottish Government has lodged amendments 354 to 361 in relation to information that landlords must include in rental adverts for properties in rent control areas, unless those properties are exempt from rent control.

Together, amendments 355 and 358 will ensure that information about rent increases in the previous 12-month period and the most recent rent payable for the property is available to tenants who are looking to rent in a rent control area. That will help tenants to understand the earliest date on which the rent can be increased, which is an essential part of ensuring that the rent is applied correctly between tenancies. Amendment 360 will help a landlord to understand whether a previous rent increase is a relevant rent increase for the purposes of these advertisement requirements. That will also support the provision of the correct information in adverts.

Amendments 356, 357 and 359 require the advert to highlight to prospective tenants that the rent at the start of the lease may be different from the rent specified in the advert if there is a variation in the percentage change in the consumer prices index before the start of the lease. That change is necessary as a consequence of the amendments to set out a CPI-based rent cap formula in the bill, which were debated in group 5. These amendments will enhance the effective operation of the rent control measures in the bill and will ensure that tenants have the information that they need in order to exercise their rights and make informed decisions about taking on a tenancy.

Amendment 422, in the name of Mark Griffin, would require the provision of an inventory to all tenants before a tenancy commences. The provision of inventories is already common practice in the private rented sector, and, in instances in which a letting agent deals with a tenancy check-in, it is a requirement under the code of practice unless otherwise agreed in writing with the landlord. The Scottish Government’s easy-read notes, which must accompany the PRT model tenancy agreement, encourage landlords and tenants to create a detailed written inventory and schedule of condition at tenancy commencement. Therefore, the need for a statutory requirement is unclear. In addition, although it is in the best interests of tenants and landlords for an inventory to be completed, there would be difficulties involved in enforcing any mandatory requirement. I therefore ask the member not to move the amendment

Amendments 247 and 248, in the name of Daniel Johnson, would require private landlords, under a private residential tenancy, and social landlords, under a social tenancy, to provide tenants with information on the rent that is payable in each of the previous 36 months. Although I recognise the calls for improved data on rent to be made available, these amendments are not necessary. For the private rented sector, information on the previous rent payable is required by tenants only where a rent control area is in place and would be unnecessary for other tenants. We have already made provision, as part of rent control measures and through our own amendments, to ensure that tenants have the information that they need to know, such as when the first rent increase might take place. That will allow people to consider whether they want to take a tenancy on.

Where a tenancy is not in a rent control area, increases in rent are restricted to once in a 12-month period, and my amendments would prevent rent increases within the first 12 months of the tenancy. In addition, section 11 of the 2016 act already allows ministers to impose a duty on landlords or prospective landlords to provide the tenant with information as specified in regulations, should that be required in the future.

In the social rented sector, information on rents is already publicly available to tenants and prospective tenants on the Scottish Housing Regulator’s website, through its landlord comparison tool. That enables a tenant or anyone with an interest to check the average rent of different sizes of landlords’ homes from 2014-15 onwards. Information on the regulator’s annual reports for each landlord also includes the average percentage increase in weekly rent for each year. Social rented sector tenants also have a right, under the 2001 act, to request information on their landlord’s policy and procedure in relation to the setting of rent and other charges, and the landlord has to provide that.

Therefore, amendments 247 and 248 are not required, and I ask the member not to press them.

Amendment 273, in the name of Maggie Chapman, seeks to introduce additional information that a landlord must provide to tenants alongside their written terms of tenancy before the day on which a new tenancy commences. I agree that it is vital that tenants are aware of and empowered to utilise their rights, including having access to relevant information that may affect their tenancy. Existing statutory requirements require specified information to be provided by the landlord free of charge to tenants at the point at which their tenancy commences. In addition, existing regulation-making powers in the 2016 act enable ministers to set out further information that must be provided by a landlord to a tenant. In my view, it is more appropriate to use those existing powers than to insert new requirements in the bill.

I have very little to say in winding up, but I recognise that we will need to raise awareness of new rights and changes and update tenancy documents and information as part of the implementation of the bill, should it be passed by the Parliament. Clearly, further signposting can be provided at this point. Although I do not agree with Maggie Chapman’s amendments, I think that she raises a very important point about ensuring that the tenant has the right information and that they obtain it in an appropriate timeframe. That is an important part of the work that we will need to look at in implementing the bill.

I press amendment 354.

I am particularly keen to work together in this area. I am in no way saying that Government drafting is perfect and, as the minister, I take responsibility for that, because it is for me to sign that off.

In relation to amendment 231, I think that we have the issue covered, but the discussions that we have had so far show that there is still disagreement about whether it is covered. Based on those discussions, I believe that we genuinely want to get to the same point, and I would be happy to work with Mr Simpson on that. If there are gaps, I am absolutely determined to close them before stage 3, because there is no point going through all this work if we do not get as robust a system as possible. I thank Mr Simpson for lodging his amendments so that we can absolutely test the proposals to breaking point to find out whether there are any gaps.

I thank the member for the interesting conversations that we have had on the matter. I reassure him that, as I understand it, a consultation on CPOs will start in September this year—I will get back to the member on the timing if I have not quite remembered it correctly.

The member has raised an interesting point about how the approach can go further, whether through compulsory sales orders or compulsory leasing orders, which have been discussed in other areas when we have looked at ways of tackling the housing emergency. All that is of interest to the Government.

I very much agree with the member that, although Glasgow has been at the forefront of using CPOs—indeed, a lot of local authorities can learn from what it has been doing—we can clearly do more in that area.

I am keen to work with Mr Sweeney on some of the points that have been raised in this discussion. I am not sure that the issue requires legislation, but his points about the best use of the current housing stock, and particularly about growing that housing stock, are exceptionally telling regarding his interest in Glasgow and will also have benefits further afield. I am keen to carry on discussions about what more can be done.