Local Government and Communities Committee

Meeting date: Wednesday, January 30, 2019

Official Report 594KB pdf

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Subordinate Legislation

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Housing (Scotland) Act 2006 (Supplemental Provision) Order 2019 [Draft]

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Housing (Scotland) Act 2006 (Modification of the Repairing Standard) Regulations 2019 [Draft]

Agenda item 3 is consideration of two statutory instruments that seek to modify the Housing (Scotland) Act 2006. I refer members to paper 3. I welcome from the Scottish Government Kevin Stewart, Minister for Local Government, Housing and Planning; Simon Roberts, policy manager, housing standards and quality; and Kirsten Simonnet-Lefevre, solicitor.

The instruments are laid under the affirmative procedure, which means that the Parliament must approve them before the provisions can come into force. Following the evidence session, the committee will be invited under the next agenda items to consider motions to approve each instrument.

I invite the minister to make a short opening statement.

Thank you for the opportunity to appear in front of the committee today to speak to the motions to approve the draft Housing (Scotland) Act 2006 (Modification of the Repairing Standard) Regulations 2019 and the draft Housing (Scotland) Act 2006 (Supplemental Provision) Order 2019.

For technical reasons, the amendments to the repairing standard are split into two instruments, because powers to make orders and regulations cannot be combined. Taken together, the instruments will improve the repairing standard that is required of homes that are provided by landlords in the private rented sector. That will meet a commitment in the programme for government to introduce changes to improve the condition of properties in the private rented sector and it follows our public consultation in 2017 on the changes.

There are several specific provisions in the instruments. First, there are measures that will come into force from 1 March 2019, which are intended to clarify existing duties under the standard. They provide that a house must meet the statutory tolerable standard, make it clear that the repairing standard does not apply to short-term holiday lets, and recognise that landlords are not at fault if other owners refuse consent to carry out common works.

Secondly, from 1 April 2021, the duty to provide fire and smoke alarms will be removed from the repairing standard, because we are extending the standard that is currently required in the private rented sector to all tenures. From that date, the duty will be part of the tolerable standard that applies to all houses, so this change will not affect what is required of private landlords.

Thirdly, there are substantive changes that will raise and improve the repairing standard and will come into force from 1 March 2024, so landlords will have five years to bring houses up to standard. The changes will require private rented housing to have safely accessible food storage and food preparation space, safe access and use of any common parts in a tenement, secure common doors with satisfactory locks, devices to reduce the risk of electrocution and electrical fires, and a fixed heating system, which means that there will have to be a system or installation in houses for heating space and water. We are also adding “other fuels” to the duty requiring gas and electrical installations to be safe.

We will work with stakeholders to develop guidance to support landlords in those changes and the regulations specify matters that guidance may cover, which will also include the condition of pipes that supply water for human consumption.

Finally, from March 2027, the existing exclusion for various types of housing under agricultural tenancies will be removed from the repairing standard. That realises the commitment that was made by me and the Cabinet Secretary for the Rural Economy at the agricultural housing summit in Perth on 1 October last year that housing in this sector should meet the repairing standard in eight years. In 2019, it is unacceptable for tenants and families who live in housing under agricultural tenancies in Scotland to live in substandard homes that we would not accept if they were provided by a private landlord in our urban areas.

The instruments are an important contribution to improving the quality of our private rented housing. However, I recognise that more needs to be done. That is why, for example, I will give serious consideration to the final recommendations of the cross-party working group on tenement maintenance to drive a culture change to encourage proactive maintenance in tenements. Of course, we have separate work to deal with holiday and short-term lets.

The instruments will introduce a range of measures, which are supported by stakeholders, to meet our commitment to raise standards in the private tented sector, thereby helping to ensure that private tenants are able to live in homes that meet a standard that they are entitled to expect.

Thank you, minister. I invite questions from members.

I agree with the minister about the improvements that are being made, but the timescales seem a bit long: five years and, for agriculture, eight years. What are your thoughts on that?

We need to allow a reasonable amount of time to carry out the work and to spread the cost, particularly when planned works will be needed across a number of properties. We sought views on implementation in our consultation, and there was overall support for the implementation period that we have put in place.

However, I encourage private landlords to begin the work now if they are not already meeting the standards that we are setting. I agree with Mr Rowley that there is always a fine balance to be struck, but I think that we have the balance right in allowing folk the opportunity to get the work done over a period. Again, I encourage all private landlords to move further and faster if they can.

If there is five years in which to do the work, there is a danger that people will wait to do it.

Where are you on energy efficiency standards in the private rented sector?

The energy efficient Scotland route map, which was launched in May last year, confirmed that we would introduce regulations requiring private rented sector properties that have a change in tenancy from 1 April 2020 to have an energy performance certificate at band E, and that all such private rented properties have an EPC at band E by 31 March 2022. Properties that have a change of tenancy from 1 April 2022 will need to have an EPC at band D, and all such properties will need to have an EPC at band D by 31 March 2025. The consultation that accompanied the route map proposed that all PRS properties be required to have an EPC at band C by 2030

“where technically feasible and cost effective”.

We will publish draft regulations for consultation on minimum energy efficiency standards in the first half of this year.

I have a couple of questions. The changes that you propose—safe kitchens, fuel and doors and so on—are being introduced through the modification of sections 13(4A), 13(5) and 13(6) of the Housing (Scotland) Act 2006. Section 13(1) says:

“A house meets the repairing standard if—”

the house is

“wind and water tight”.

It also mentions

“the structure and exterior of the house”

and

“the supply of water, gas and electricity”.

What considerations were in your mind in choosing whether to include new criteria for meeting the repairing standard under section 13(1), which is an absolute—people must do those things—or under sections 13(4A), 13(5) and 13(6), which require people to have regard to these things? Having regard to things is obviously a fine judgment, but—

Convener, we have had discussions previously at this committee on the use of terminology, including “have regard to”. I will ask Ms Simonnet-Lefevre to give the legalese about having regard to something and then I will respond to Mr Wightman’s general point.

We are adding certain criteria to the repairing standard that a house must meet. The conditions in sections 13(4A), 13(5) and 13(6) of the 2006 act provide guidance on how to determine whether a house has met that standard. That guidance is being replaced by regulation 3(3), which explains how to decide whether a house has met the standard.

Okay—I am with you. Thank you for that useful explanation. That makes sense.

My second question is on holiday lets. The policy note says that they are already covered by existing legislation, but the regulation on holiday lets clarifies that legislation and it will come into force from 1 March 2019. First, what is that legislation?

Just to clarify, the housing acts of 1984, 1988 and 2016 do not include holiday lets. Under the current rules, a holiday let is more likely to be regarded as an occupancy agreement rather than as a tenancy and is therefore not subject to the repairing standard. That is not changing. However, there can be a question of whether a particular let is an occupancy agreement or a tenancy, so it is not always clear for the owner whether the standard applies. We are clarifying that in the regulations.

Beyond that, as I said in my opening remarks and as Mr Wightman is very well aware, we are looking through our working group at the whole issue of short-term lets. They are governed by other regimes, but work is on-going on what we need to do to improve that situation.

What we have done is to make clear the distinction between a private tenancy and a short-term let. I would have thought that Mr Wightman would be glad about that, given the lengths to which he has gone to say that there is a distinct difference.

11:15  

There is. I have seen the language that has been used and think that it is useful, but what would be the situation with a property whose owner was absent for four or five months of the year, because they were working, say, offshore or in the middle east, and rented the house as a holiday let during those months? Would that be subject to the repairing standard?

It is very difficult for me to answer such a hypothetical question. After all, I do not know what the agreement between the owner and a possible tenant or holidaymaker would be. If we are talking about a tenancy, the property would have to meet the repairing standard, whereas a short-term let would have to comply with other regimes. As I have said, we are taking an in-depth look at those other regimes.

That makes sense. If there is a tenancy in place, even for part of a year, the property has to meet the repairing standard.

Yes. If it was a tenancy, it would have to meet the repairing standard.

All of this makes sense, but I want to ask about the background to the safe kitchens element of the proposal. The regulations seek to insert into the 2006 act a new provision with regard to safely accessible

“food storage ... and ... food preparation space”,

which, to me, could mean a fridge, a cupboard and workspace for food preparation. What evidence led you to take the decision?

We know that people have had tenancies where they have not had adequate kitchen space, and the regulations will make sure that all tenancies do. As for what is required to create a safe kitchen, we will lay that out in guidance. I am quite happy to share that guidance as we move forward to ensure that the committee can see for itself what exactly we are proposing.

We are countering that small minority—and it is a small minority—of cases of folks not having the right facilities in the home that they are renting. We believe that they should have those facilities, and that is why we are moving forward on that front.

As members have no more questions, we move to agenda item 4, which is formal consideration of motion S5M-15439.

Motion moved,

That the Local Government and Communities Committee recommends that the Housing (Scotland) Act 2006 (Supplemental Provision) Order 2019 [draft] be approved.—[Kevin Stewart]

Motion agreed to.

The committee will report on the outcome of the instrument in due course.

We move to agenda item 5, which is consideration of motion S5M-15441. I remind everyone that only the minister and members may speak in the following debate.

Motion moved,

That the Local Government and Communities Committee recommends that the Housing (Scotland) Act 2006 (Modification of the Repairing Standard) Regulations 2019 [draft] be approved.—[Kevin Stewart]

Motion agreed to.

Is the committee happy to delegate authority to me as convener to approve the report?

Members indicated agreement.

The committee will report on the outcome of the instrument in due course.

That brings us to the end of our evidence session. I thank the minister, particularly in view of the fact that he has a cold—or whatever it might be—and I suspend the meeting briefly.

11:20 Meeting suspended.  

11:20 On resuming—