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Chamber and committees

Local Government and Communities Committee

Meeting date: Friday, September 4, 2020

Agenda: Interests, Decision on Taking Business in Private, Building Regulations and Fire Safety, Subordinate Legislation


Subordinate Legislation

Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 [Draft]

The Convener

Agenda item 4 is consideration of the draft Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020. The committee will first take evidence on the regulations, for which I welcome Kevin Stewart, the Minister for Local Government, Housing and Planning, and Scottish Government officials Yvette Sheppard, who is the team leader for better homes, and James Hamilton, who is a solicitor for housing and local government.

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

I invite the minister to make a short opening statement.

The Minister for Local Government, Housing and Planning (Kevin Stewart)

Thank you, convener. I thank you, too, for allowing me to do this today as part of the committee’s consideration of our draft regulations to bring in pre-action protocols that will apply in rent arrears cases in the private rented sector.

The past few months have been challenging, with the coronavirus outbreak having significant implications for everyone, including the many people in rented accommodation. In responding to the outbreak, we have been clear that taking eviction action against a tenant because they have suffered financial hardship due to the coronavirus outbreak should always be a last resort. We want landlords, instead of doing that, to be flexible with their tenants and to signpost them to the range of financial support that is available to prevent rent arrears, working with them to manage any arrears that occur.

We introduced legislation to prevent renters from facing eviction and have made most grounds for eviction discretionary, to ensure that a tribunal considers the reasonableness of granting an eviction order at this time. We have now confirmed our intention to lay regulations that will, subject to their approval by Parliament, extend those protections to the end of March 2021.

We also want to strengthen further protection for tenants who find themselves in rent arrears at this time by ensuring that landlords work with them to manage those arrears before taking steps to seek eviction. For that reason, we have introduced legislation that will allow pre-action requirements to be brought in that will apply to a private landlord who is seeking to evict a tenant for rent arrears. Compliance with those pre-actions will form part of the discretionary consideration of the tribunal in such cases.

The regulations that the committee is considering today set out those pre-action requirements, giving clear direction to landlords on the steps that they must take in advance when seeking an eviction order for rent arrears. They have been drafted with input from stakeholders and will inform our approach as we move forward. The introduction of the requirements is welcomed across all sectors and there is agreement that they will play a role in sustaining tenancies at this time, which will benefit tenants and landlords.

I look forward to the committee’s questions.


There are a number of questions from members. Perhaps Sarah Boyack would like to kick off.

Sarah Boyack

I welcome the regulations, but I have a couple of questions about clarity. We have had a briefing from Shelter Scotland—I do not know whether the minister has seen it—that asks about the information that would be available to tenants in advance of the First-tier Tribunal for Scotland housing and property chamber hearing, which sounds like a reasonable request. It is about being able to test the reasonableness of a decision by a landlord. Given that the regulations are in front of us today and we cannot amend them, is there any way in which the minister could communicate that reasonable request both to landlords, perhaps through the Scottish Association of Landlords, and to the First-tier Tribunal? That would help us to ensure that there is maximum support for tenants and that they will have clarity if they have to go to the First-tier Tribunal.

Kevin Stewart

I have not seen the briefing from Shelter—I assure the committee that I will look at it and consider what is in it.

It would be dishonest of me not to mention that I would be unable to direct a tribunal, and I am always a bit sweirt of anything that might look like instruction, which I cannot give to a tribunal. However, I will look at what Shelter has submitted and consider what is being said, and I will write back to the committee with a decision and the reason for that decision.

In general, I have tried my best, throughout all of this, to let tenants know exactly what their rights are. I have written to every tenant in the private rented sector in Scotland on their rights, signposting them to help. I want to do as much as I can to ensure that tenants know their rights as we move forward.

Am I allowed to ask another question, convener?

You can ask one supplementary.

I welcome the minister’s response. A key element would be monitoring the implementation and effectiveness of pre-action requests. If he could commit to that, it would be much appreciated.

I will commit to monitoring all this as we move forward. It is essential that we gather as much data as possible as we move forward, in order to see what the impacts on people’s lives actually are.

Andy Wightman has a number of questions for the minister. It would be good if you could put a couple of them together, if that is possible.

Andy Wightman

I will do my best, convener.

Minister, at stage 3 of the bill that became the Coronavirus (Scotland) (No 2) Act 2020, you said:

“To ensure that the regulations will be effective and workable, we will work with stakeholders—including Mr Wightman, and representatives of landlords and tenants—to develop them.”—[Official Report, 20 May 2020; c 51.]

In the policy note on the instrument before us, you say:

“The ... Government has consulted with a range of stakeholders”.

Have you consulted private tenants?

Kevin Stewart

We have consulted the private rented sector resilience group, which was established to inform the Government during the pandemic. As I said to Mr Wightman in an answer in the chamber—if I remember rightly; it might, in fact, have been in committee—we have folks there who are private rented sector tenants.

Andy Wightman

In response to a question from Sarah Boyack, you talked about the importance of monitoring. Shelter has been monitoring evictions in the social sector for some years. In its 2016 report “Evictions by social landlords” it found:

“Despite the policy intention and broad buy-in across the sector, pre-action requirements have not had a sustained, long-term impact in reducing evictions.”

What makes you think that introducing pre-action requirements in the private sector will make any difference?

Kevin Stewart

As you can imagine, I do not have Shelter’s report from 2016 in front of me. Many people across the public sector see pre-action protocols as the right way to move forward and communicate with tenants. The protocols have prevented a large amount of evictions, which I think is extremely important. I could look at Shelter’s 2016 report, but it is now four years old. From anecdotal evidence and discussions that I have had, as well as from constituency cases, it seems that pre-action protocols work in many instances. I will discuss the matter further with Mr Wightman offline if he would like to, but that report is four years old.

Andy Wightman

I will wrap my final questions into one. First, the minister said at stage 2 of the Coronavirus (Scotland) (No 2) Bill that he would consider making pre-action requirements permanent in the private sector. Has his thinking developed from that?

Secondly, in the social sector, the Housing (Scotland) Act 2001, as amended by the Housing (Scotland) Act 2010, says that,

“in complying with the pre-action requirements, the landlord must have regard to any guidance issued by the Scottish ministers”

on the social side. There is no requirement for any statutory guidance in the private sector in the instruments that are before us today. Is there a reason for that?

Kevin Stewart

I do not think that there is any reason for that. At stage 2 of the Coronavirus (Scotland) (No 2) Bill, I said to the member that we would be looking to make pre-action protocols permanent, and officials are working on that. If we decide to do that—it is likely that we will—we will also take cognisance of what he has said about guidance.

Jeremy Balfour

My question is at a slight tangent. One of the consequences of what we have introduced is that a number of my constituents who were hoping to carry out work to their properties and who have the appropriate warrants in place have, because of the restrictions against evicting tenants, been unable to do that and will need to reapply for the relevant permission. If the non-eviction approach is going to continue for several months, a number of people who had planned to do work will now not be able to do that work. Will the minister look at that and see whether anything can be done?

Kevin Stewart

If any member wants to send me casework that they have in order to resolve such situations, I will look at it. However, we have put these protections in place to protect people and I am quite sure that solutions can be found by looking at building warrants, for example. In order that I can look into these cases, which may be anomalies, I have to see the details first. I have not had any such matters cross my desk so far, and there has been a lot of communication on that front.

The Convener

Jeremy Balfour has raised an interesting point. Thank you very much, minister. There are no more questions.

Motion moved,

That the Local Government and Communities Committee recommends that the Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 [draft] be approved.—[Kevin Stewart]

Motion agreed to.

The Convener

The committee will report on the draft Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 in due course. I invite the committee to delegate authority to me, as the convener, to approve a draft of the report for publication. That is agreed.

That concludes the public part of the meeting.

11:39 Meeting continued in private until 12:22.