Better Dispute Resolution in Housing: Analysis of Responses to the Consultation on the Introduction of a New Housing Panel for Scotland

Executive Summary

1. This report presents an analysis of the responses submitted to the Scottish Government's Better Disputes Resolution in Housing consultation. The overall focus of the consultation is on improving the effectiveness and efficiency of dispute resolution for rented housing cases, and the potential for a Housing Panel as an alternative mechanism for making decisions about housing disputes.

2. Three principal options considered are: expanding the use of mediation and alternative dispute resolution; the creation of a pre-court housing panel to which housing disputes could be referred as an earlier stage for formal resolution; and the creation of a housing panel to replace courts as the main decision maker in certain housing dispute cases.

3. The consultation ran from 16 January 2013, with responses invited by 9 April 2013. A total of 116 responses were received by the Scottish Government, 101 submitted by groups or organisations and 15 by individual members of the public.

Preventative Action

4. A clear majority of respondents did not want the Scottish Government to consider legislative action to assist with the early resolution of disputes, with many suggesting the emphasis should be on ensuring effective implementation of the current regulations and that there are already a number of measures in place - such as pre-action requirements - which require landlords to take a pro-active approach to dealing with disputes.

5. Those who did believe the Scottish Government should consider legislative action were often looking to create greater consistency in practice between landlords, along with easier and swifter resolution of some disputes.

6. Most respondents did not expect upstream action to achieve better outcomes than a new housing panel or reformed courts. However, a clear majority also considered there to be further non-legislative measures that could be taken to encourage the prevention and early resolution of housing disputes. A popular suggestion was the development of national standards and further good practice on early stage intervention and resolution techniques.

7. There was a considerable level of support for making mediation more widely available. The areas of dispute in which respondents thought mediation might have a role to play included: standards of service; a tenant's failure to meet their obligations; and low level neighbour disputes. Some respondents thought rent arrears cases could be mediated, although others felt this was not an issue for which mediation would be appropriate.

8. Views were mixed as to whether it would be better to expand existing provision or create a new housing mediation service. More respondents favoured expanding existing provision, although the balance of opinion did vary significantly depending on the respondent type. In particular, while a clear majority of local authority respondents favoured the expansion of existing services, a majority of RSL, tenant and resident group and individual respondents supported the development of a new service.

9. Respondents tended to take one of two broad positions on funding. Most respondents took the view that any service or services should be wholly or partially funded by the Scottish Government. Others suggested that funding should come from a broader range of organisations, most obviously those that could make savings if more effective dispute resolution was available.

10. Suggestions around improving public awareness of mediation as a way of solving housing disputes tended to focus on the need for a national and/or local publicity campaign. It was also suggested that mediation should be promoted not only to the public but also to relevant public agencies across Scotland and that appropriate guidance should be issued to encourage consistency in practice across all local authority areas.

A Pre-Court Housing Panel

11. A clear majority of respondents felt that a pre-court Housing Panel should not be established.

12. There was some suggestion that the more inquisitorial panel approach could be suited to the consideration of most or all housing dispute cases. However, most respondents suggested the pre-court Housing Panel's remit should be focused on specific types of dispute such as housing debts and antisocial behaviour, potentially taking into account whether mediation has failed or where tenants' needs may be better met via a less formal inquisitorial approach.

13. Respondents were divided on the range of parties who should be able to refer the case to the pre-court Housing Panel. Some suggested that third parties should be able to make a referral, including neighbours, mediation officers, local authority or other statutory bodies. Others suggested that a referral should only be made by those party to the dispute, potentially including mediation services or representatives/advocates involved in the case.

14. Most respondents suggested that pre-court Housing Panels would be most effective where members have a range of backgrounds, skills and qualifications - suggestions typically including lay person representation alongside members with housing and legal qualifications.

15. A range of specific timescales were suggested for pre-court Housing Panel orders to remain in place, including reference to ensuring consistency with other tribunals, courts and relevant legislation. There may be benefit in the panel tailoring the length of time an order should remain in place based on the specifics of the case.

16. Views on how and when cases should be escalated to court ranged from the pre-court Housing Panel being permitted some discretion in how cases are escalated to court, to those suggesting that fast-track escalation to court should occur immediately and automatically upon first breach of the panel order.

17. Those opposed to the creation of a pre-court Housing Panel made clear that they agree with the intended outcomes of the panel, particularly in terms of the need to address delays and inconsistences in the current court-based housing dispute process. However, a pre-court Housing Panel was seen as less likely than other options to achieve these outcomes, and as risking further delay and cost to resolution of housing disputes.

18. Around half of those opposed to a pre-court Housing Panel felt that required improvements in the dispute resolution system would be better delivered through proposed civil court reforms. This was linked to a view that in the absence of a clear case for the panel delivering significantly better outcomes than reformed courts, the expense of the panel could not be justified. There is also a perceived need to allow court reforms to 'bed in', to allow an informed view on whether a pre-court Housing Panel would further improve dispute resolution.

A Housing Panel to Replace Courts as Decision Maker

19. Half of all respondents to the consultation were in favour of the creation of a Housing Panel to replace the courts as the main decision maker for housing disputes. This included a large majority of RSLs, local authorities, housing representative agencies and other representative agencies. In contrast, the majority of legal firms/representative groups, letting agents & private landlords and individual respondents were opposed to this option.

20. Those opposed to a Housing Panel to replace courts as a decision maker were broadly in support of the intended outcomes of a panel. However, respondents identified a number of issues which, in their view, undermine the case for a Housing Panel being the best way of achieving these outcomes. This included significant concerns about proposals to deal with an individual's tenancy status outwith the court system, the significant resource requirements to establish a new Housing Panel, and a need to allow civil court reforms to complete prior to making a decision on introduction of a Housing Panel.

21. The core suggestion for Housing Panel membership was for 3-5 members, including a legal professional, housing professional and lay person with suitable housing-related experience. It was also suggested that the broad range of cases to be considered by a Housing Panel may require representation of other qualifications or fields - as standing panel members, or the facility to draw in other qualified individuals as required by specific cases.

22. Views were divided on whether a Housing Panel should be created by expanding the caseload of the prhp (Private Rented Housing Panel). This was the case across most respondent groups, although the majority of housing representative agencies and local authorities answering the question were opposed to this option.

23. There was some suggestion that all civil cases that would normally be referred to the court should fall within the remit of a Housing Panel. However, most respondents suggested a panel's remit should be focused on specific types of dispute such as housing debts and antisocial behaviour, potentially taking into account whether mediation has failed or where tenants' needs may be better met via a less formal inquisitorial approach.

24. Views were divided on the issue of fee charging for a new Housing Panel. Nearly half of respondents to this part of the consultation (27 out of the 60 that answered this question) felt that one or more parties should be charged a fee for raising actions before a Panel. However, 20 respondents were opposed to fee charging. This mix of views was evident across all respondent groups.

25. A quarter of all consultation respondents felt that required improvements in the dispute resolution system would be better delivered through proposed court reforms. This profile of views was consistent across respondent types.