Local Government and Communities Committee

Meeting date: Friday, August 21, 2020

Official Report 546KB pdf

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Public Petition

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Pre-1989 Scottish Secure Tenants (Rights) (PE1743)

Agenda item 4 is consideration of petition PE1743, on the rights of pre-1989 Scottish secure tenants, by John Foster, on behalf of Govan Community Council and others. The petition calls

“on the Scottish Parliament to urge the Scottish Government to amend the Rent (Scotland) Act 1984 to prevent disproportionate rent increases being set for Scottish Secure Tenants.”

The petitioner contends that rents for a category of social housing tenant were raised significantly and that, although a Court of Session case concerning one of the cases judged the method that was used to reach the revised level to be unlawful, that has not stopped the other rent rises from remaining in place. The petitioner says that that cohort of increased rents is being used as a comparator for rent reviews elsewhere in the sector. The petitioner calls for a change in the relevant legislation and for the historical issue with that cohort of tenants to be addressed.

We had a brief look at the petition some months ago and I am glad that it has come back to committee. Obviously, the petitioner is disappointed that the Court of Session judicial review did not have wider ramifications. That is not the fault of the Court of Session, which did its job, but it appears that decisions are still be being made, which are, in the petitioner’s view, “flawed”. As was reflected in the Court of Session judgment, much of the decision making was flawed and used comparators that perhaps should not have been used. However, much of that flawed process is down to the wording of section 48 of the Rent (Scotland) Act 1984, which refers to

“rents of comparable property in the area”.

The petitioner’s view is that the wording should be changed to

“rents of comparable social housing in the immediate area”.

Although the legislation governs a relatively small number of tenants, similar problems arise in other parts of the housing market, such as mid-market rents, where there is insufficient legal certainty about how what is a mid-market rent at the outset continues to be a mid-market rent. Much of that is down to the fact that the comparators that are being used are broad housing markets that include the private sector, in which rents in some parts of Scotland have been inflated significantly.

I make two points. The first relates to emerging evidence that suggests that the statutory measures in place that are designed to keep rents affordable are not working. What might have been regarded as comparable rents when the 1984 act was passed—that was Parliament’s intention at the time—might no longer be comparable, particularly because we have a much larger private sector and private sector rents are rising fast.

It is important that we revisit the legislation. My view is that the 1984 act needs to be amended. Of course, we should not amend the act just because I want it to be amended or, indeed, because the committee is of the mind that it should be amended.

I am also keen to hear from other members. The committee should reflect that view about rents, or something similar, to the Government and make a point about rent reviews in general. We are talking about, for example, the general failure of rent pressure zones under the Private Housing (Tenancies) (Scotland) Act 2016. I am gathering data on how much data local authorities have collected, because they rely on data collection to implement such zones. The issue is covered in Pauline McNeill’s Fair Rents (Scotland) Bill.

There is a bigger question than that which is raised by the petition, which raises a typical problem that we find in the statutory framing of rent reviews. That is a serious issue, and we should reflect our concerns to the Government.

I draw members’ attention to my entry in the register of members’ interests in relation to my previous employment with the Scottish Federation of Housing Associations.

Following up on Andy Wightman’s comments, I am aware of mid-market rent constituents who are beginning to get very worried about their capacity to pay rent, because they have lost their jobs or income through the impact of the pandemic. Have we had any feedback from the Government on what we can do about that? I note that work was planned between the Government and social housing organisations. Would it be possible for us to get comments from the Government?

I agree with Andy Wightman that we need to consider the viability and capacity of tenants to pay rent. It seems as though there is a gap in how the legislation was framed. I think that it is three years since the petition came to the Parliament, so it would be good to try to get a decent response, and evidence that would be useful to guide us, before we go back to the petitioner.

We need to remember that we should be talking about the petition—which does open the door to some of the issues that Andy Wightman and Sarah Boyack have raised. As convener, I need to know what the committee wants to do. We could certainly write to the Government to ask for an update. I think that it has been only a year since the petition came to Parliament—it has not been quite as long as three years—but the same principle applies.

We could decide that writing to the Government is the only action that we want to take, or we could also write to some of the organisations that are involved, such as housing associations, the SFHA, Glasgow and West of Scotland Forum of Housing Associations and the Scottish Courts and Tribunals Service. If we write only to the Government, seeing what it comes back with would give us firmer ground on which to decide whether we want to take any other action, and it might help to tease out the answers to some of the questions that Andy Wightman and Sarah Boyack have asked.

Our papers show that the legal decision was made in August 2017—that is what I meant to reference, rather than to the petition coming to Parliament three years ago.

I agree with the convener’s proposals, which might give us a bit more certainty and background. We will be able to make a better decision if we know what the Government and other organisations think about the issue.

The Government responded in November 2019 to a letter from the Public Petitions Committee. It did not say much, other than that it was identifying good practice and reviewing fair rents.

The fundamental point—as I argue—is that the statutory framing of section 48 of the 1984 act gives the rent review committee wide scope to interpret what “comparable rents” are. Between 1984 and now, the private rental market has more than tripled in some parts of Scotland. That includes parts of Scotland and properties that were occupied under the 1984 act. Those rents will now be substantially higher. If tenants in that position are facing rent reviews, they could anticipate that they will also receive double-digit rent rises.

To summarise, you want us to ask the Government what cognisance it has taken of the issue and what it is doing to make sure that people paying mid-market rents do not find themselves priced out of the market.

Sarah Boyack touched on mid-market rent, but that is a separate issue. Convener, you correctly pointed out that there are wider issues that are not in the scope of the petition. However, the petition calls

“on the Scottish Parliament to urge the Scottish Government to amend the Rent (Scotland) Act 1984 to prevent disproportionate rent increases being set for Scottish Secure Tenants.”

I think that we should urge the Government to amend the 1984 act. That is my position now. The committee may want to reflect a little more before deciding that, too, but I propose that we agree with the petitioner. I understand that we may not be quite there yet.

I suggest that we follow the approach that I outlined earlier—that is, we write to the Government and ask it to get back to us, and we write to housing associations and others, including perhaps Living Rent, and get their feedback. That would give us a much stronger position from which to make a decision. I accept that Andy Wightman might have specialist knowledge, but getting that information would help some of the other members to make a decision.

Are we happy to do that?

Members indicated agreement.

We will write to the Government, Living Rent, the Scottish Courts and Tribunals Service, the Scottish Federation of Housing Associations and the Glasgow and West of Scotland Forum of Housing Associations. We will draft a letter for the committee to see before we send it.

Peter, do you want to come in before we finish?

I have nothing to add.

I see that Andy Wightman wants to say something.

Your list of the organisations that we would write to did not include Living Rent, although you suggested earlier that we could write to it.

No—the list did include Living Rent.

That is fine.

Thank you very much. That concludes the public part of the meeting.

11:14 Meeting continued in private until 11:51.