Coronavirus Acts: eleventh report to Scottish Parliament (February 2022)

7. Supplementary information

First Scottish Act

7.1.1 Section 2 and schedule 1 – Eviction from dwelling houses

Reporting on the status of eviction provisions and measures in place to protect tenants from eviction and any plans for further measures the Scottish Ministers propose to put in place to protect tenants from eviction

7.1.1.1. Section 6(1) of the Coronavirus (Extension and Expiry) (Scotland) Act 2021 (“the 2021 Act”) requires the Scottish Ministers to report on: the number of notices of proceedings issued to tenants in social housing as a result of rent arrears; the value of rent arrears in social housing; and the number of evictions orders issued by the First-tier Tribunal for Scotland because of rent arrears.

7.1.1.2. Paragraph 1(2) of schedule 1 makes provision for all private rented sector eviction cases going before the First-tier Tribunal (Housing and Property Chamber) to be considered on a discretionary basis. As of 31 October 2021, the First-tier Tribunal (Housing and Property Chamber) confirmed that it had received 737 applications that fall within the scope of the emergency provisions.

7.1.1.3. An analysis of the decisions made by the First-tier Tribunal (Housing and Property Chamber) shows that between 8 July 2020 and 23 December 2021 there have been a total of 230 eviction orders issued relating to private residential tenancies (PRTs) where rent arrears were cited.

7.1.1.4. Latest available Coronavirus dashboard information published by the Scottish Housing Regulator^[23] shows that the total value of rent arrears in the social sector increased substantially from £150.0m to £165.0m in the four months between the end of April 2020 and the end of August 2020, an increase of £15.0m (10.0%). The value of arrears subsequently stabilised across most months since then, and then decreased in March 2021 to stand at £160.7m as at end March 2021. Following this the value of arrears dropped further by £3.3m (2.0%) to £157.5m as at end June 2021, but has since risen again to £166.2m based on latest available figures to end September 2021.

7.1.1.5. The dashboard information also shows that the number of notices of proceedings for recovery of possession issued by social landlords for rent arrears increased each month from June 2020, rising from 246 in June 2020 up to 1,514 in November 2020. After this the numbers decreased to 699 in January 2021, 875 in February 2021 and 934 in March 2021, following which there have been 3,641 notices issued in the quarter April to June 2021 (an average level of 1,214 per month) and then 4,417 notices issues in the latest quarter July to September 2021 (an average level of 1,473 per month). The number of court actions initiated for eviction increased from 30 in June 2020 up to 102 in September 2020, after which the number fell to 63 in March 2021. Following this there have been 296 actions initiated in the quarter April to June 2021 (an average of 99 per month), and then 469 actions (an average of 156 per month) in the latest quarter July to September 2021, levels which are significantly lower when compared to average monthly figures for previous years.

7.1.1.6. Paragraph 8 of schedule 1 provides a power for Scottish Ministers, exercisable by the negative procedure, to modify the length of any period of notice specified to apply during the relevant period. In exercising this power, the Scottish Ministers cannot specify a notice period which is longer than six months. In light of the substantial impact anti-social behaviour can have on individuals and communities, Ministers exercised these powers to ensure that where landlords have clear evidence of anti-social or criminal behaviour, which cannot be resolved by other means, then they are able to take the necessary action to end the tenancy. It should be noted that Ministers can exercise their power under paragraph 8 at any time during the lifetime of the specific provisions in the emergency legislation.

7.1.1.7. The provisions which extend notice periods to - in effect - halt any eviction action under the existing legislation including the Private Housing (Tenancies) (Scotland) Act 2016 and the Housing (Scotland) Act 2001, for up to six months, have been used in the reporting period. This applies to both the social and private rented housing sectors in order to ensure that the position is absolutely clear for all landlords in Scotland.

7.1.1.8. To further support renters facing eviction during the ongoing pandemic, regulations banning the enforcement of eviction orders in the private and social rented sectors came into force on 11 December 2020. The evictions ban was subsequently added to the Local Levels Regulations from 22 January 2021 and applied to areas subject to Levels 3 or 4 restrictions. On 5 March 2021, the Local levels Regulations (including the evictions ban in levels 3 and 4) were extended until 30 September 2021. The Local Levels Regulations (including the evictions ban) were revoked on 9 August 2021 by the Health Protection (Coronavirus) (Requirements) (Scotland) Regulations 2021. Accordingly, there is no current ban on the enforcement of evictions in Scotland.

7.1.1.9. Social and private landlords have also reaffirmed their commitment to supporting tenants facing difficulties during the pandemic^[24].

7.1.1.10. Additional reporting requirements under section 6(1) of the 2021 Act require details of the measures in place to protect tenants from eviction and any plans for further measures. In relation to the additional measures in place to protect tenants, the Scottish Government has funded councils with £10 million to provide grants to tenants who have fallen behind on their rent as a result of the pandemic and are at risk of eviction. This is in addition to the £10 million loan funding made available to tenants and the £5 million loan funding made available to landlords. A number of local authorities have made payments from the fund to support tenants in arrears. Others are in the process of assessing enquires about and referrals to the fund. All local authorities have been asked to provide monitoring reports on the operation of the grant fund to 31 December 2021. The results of this will be available for the next update to Parliament.

7.1.1.11. Additional background on the factors to determine the use and continued necessity of the provisions can be found in the Ninth Report.

7.1.2 Section 5 and schedule 4, Part 4 – Extension of time limits

7.1.2.1. At this time, a significant backlog of cases continues to exist and the Scottish Government considers the extended time limits continue to be necessary. Information from the Crown Office and Procurator Fiscal Service (COPFS) indicates that, as of November 2021, there are currently 786 potential sheriff and jury cases and 530 potential High Court cases which are older than the pre-pandemic time limits, with many more that are close to those limits which would mean that a large amount of resource would require to be diverted to make applications to extend time limits on a case-by-case basis if the time limit extension provisions were not in force, which would in turn impact on the ability of prosecutors and courts to address the backlog of cases.

7.1.2.2. To tackle backlogs built up while necessary public health restrictions have been in place, the Scottish Government has committed to investing £50 million this year to the Justice Recover, Renew, and Transform (RRT) programme. This will drive further reform, including greater use of digital tools and improved support for victims and witnesses.

7.1.2.3. A number of measures have been put in place to mitigate the impact of the COVID pandemic – with most civil work being dealt with on-line or virtually and the establishment of innovations such as remote jury centres in cinemas for the most serious criminal trials. Using the additional funding, the Scottish Courts and Tribunals Service (SCTS) announced additional sixteen court capacity, which forms a significant part of our Recovery programme and which has been made possible by continued collaboration across the whole justice system. The High Court will sit in Airdrie, Dundee, Inverness and Stirling, with the Sheriff Solemn courts sitting in Dumfries and Dunfermline. All trial courts will be linked to remote jury centres. The ten additional Sheriff Summary courts will be provided at varying locations across Scotland, based on the level of cases and safe court capacity, with at least one additional court in each of the six sheriffdoms in Scotland.

7.1.3 Section 5 and schedule 4, Part 8 – Release of prisoners

7.1.3.1. These provisions were utilised to conduct a limited release of prisoners in May 2020 as detailed in the Release of Prisoners (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/138).

7.1.3.2. The Scottish Government will continue to engage with the Scottish Prison Service (SPS) in relation to the potential future use of these powers, as one aspect of wider ongoing discussions of the impact of coronavirus on the prison system, and the safe management of the prison population. New variants of Covid have continued to have significant impact on the operation of the prison system, whether in response to any cases of infection amongst prisoners or prison officers and other SPS staff, the ongoing changes to the operation of the prison estate required to mitigate and prevent the potential spread of infection, and the changing effects of public health instructions on the operation of the prison estate.

7.1.3.3. While SPS continue to make strenuous efforts to limit and mitigate any risk, there remains a real concern that future Covid developments could still create circumstances that would make it necessary for Ministers to instruct a prisoner early release action, in order to reduce the strain on prison capacity and workforce (in the absence of other powers to give effect to release in this way). As required by the legislation, Ministers would need to be satisfied that the exercise of the powers is necessary and proportionate to the circumstances faced, with action being taken to maintain the effective operation of the prison system, and to protect the health and wellbeing of prisoners and prison staff. The scale and scope of any future application of the power would have to be considered in response to the circumstances at that time, before being set out in regulations, which would be subject to parliamentary scrutiny. Should it become necessary to implement an early release process in order to maintain security and good order, or the health, safety or welfare of prison staff and prisoners, the Scottish Government will work closely with justice partners, public and third sector services, and victims groups, in order to plan and deliver the necessary activities.

Second Scottish Act

7.2.1 Section 2 and schedule 1, Part 1 – Student residential tenancy: termination by tenant

7.2.1.1. The levels system of restrictions has been revoked and revised guidance published for universities, colleges and community learning and development providers^[25]. The guidance reflects an understanding that the virus is unpredictable and significant risks remain and therefore, the provisions of the Act remain necessary at the moment.

7.2.1.2. The 28 day notice period has given students looking to find suitable accommodation in the current academic year reassurance that, should restrictions continue or more restrictive measures be re-introduced, either locally or nationally, that prevent students from taking up their accommodation as planned, they will not be held liable to pay for accommodation they are not able to use.

7.2.1.3. The 28 day notice period has also been reported as creating financial loss for suppliers of dedicated student accommodation, and consideration is being given as to whether the provisions should continue beyond the end of the current academic year.

7.2.2 Section 2 and schedule 1, Part 2 – Tenancies: pre-action requirements for order for possession or eviction order on ground of rent arrears

7.2.2.1. The provisions provide Scottish Ministers with the power to specify pre-action requirements for private landlords seeking to end a private tenancy due to rent arrears, where those arrears relate to the period during which paragraph 4 of schedule 1 of the second Scottish Act is in force. The First-tier Tribunal for Scotland (Housing and Property Chamber) must take account of the extent to which a landlord has complied with the pre-action requirements when deciding whether it is reasonable to grant an order for repossession.

7.2.2.2. Schedule 1 of the first Scottish Act makes all grounds for repossession in the private rented sector discretionary, including for rent arrears. This temporarily changed the original position whereby the First-tier Tribunal for Scotland (Housing and Property Chamber) must grant a repossession order if the level of arrears is in accordance with the criteria laid out in the relevant legislation. This change ensures that the Tribunal considers the reasonableness of making a repossession order during the coronavirus outbreak.

7.2.2.3. The introduction of regulations under the provision temporarily set pre-action requirements that will apply where all or part of the rent arrears have originated in the period during which paragraph 4 of schedule 1 of the second Scottish Act is in force. The extent to which a landlord has complied with these requirements must be taken into account by the First-tier Tribunal for Scotland (Housing and Property Chamber) when deciding whether it is reasonable to grant a repossession order.

7.2.2.4. The introduction of regulations formalises the steps landlords should take in relation to working with private sector tenants to manage arrears prior to seeking repossession during the coronavirus pandemic.

7.2.2.5. The Scottish Government has assessed the potential impact of these provisions on human rights, children’s rights and equalities and considers the introduction of pre-action requirements will have a positive impact across those with protected characteristics including women and disabled people who may have been impacted by the consequences of coronavirus. The Scottish Government also considers these measures support the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights by ensuring appropriate safeguards are in place to prevent unnecessary eviction.

7.2.2.6. The provisions were in force during the reporting period. The Rent Arrears Pre-Action Requirements (Coronavirus) (Scotland) Regulations 2020 (SSI 2020/304) came into force on 30 September 2020.

7.2.3 Section 2 and schedule 1, Part 7 – Care Homes

7.2.3.1. Although these powers have been commenced and are available, they have not been used in this reporting period. Health Boards have not required to exercise their power of a direction over care homes using this legislation. Consequently, Health Boards have not had to use the corresponding power under section 63B of the Public Services Reform (Scotland) Act 2010 to act when said direction has not been complied with.

7.2.3.2. The Scottish Ministers have not required to make an application to the courts for an Emergency Intervention Order in relation to a care home under these powers. The Care Inspectorate updates Ministers of any care home providers about which they have serious concerns and provide regular updates to them to enable emergency action to be taken quickly if required.

7.2.3.3. No further regulations have been made under powers in section 65B during this Eleventh reporting period.

7.2.3.4. Whilst the effect of the pandemic has abated to some extent due to the relatively less serious effects of the Omicron variant and the fact that a large proportion of the population has been vaccinated and received boosters, the pandemic is still current – 7500 new cases were recorded on 1 February 2022, and 30 deaths were recorded on that date where the person had coronavirus. The effect of vaccination is not permanent. We continue to see significant outbreaks in care homes: as at 12 January, 287 (27%) adult care homes had a current case of suspected COVID-19. This is higher than when consideration was previously being given to the extension of the powers (in February 2021 there were 140 (13%) adult care homes with a COVID-19 outbreak). Furthermore, there is evidence that outbreaks in care homes have been more extensive. This has led to care homes often requiring considerable mutual aid and support from NHS and Local Authority partners. It’s not only the nature of the resident population that makes them susceptible to coronavirus (age frailty underlying medical conditions), but also the fact that they all live together in close proximity with shared staff and regular visitors. There is a greater risk of the virus spreading in care homes.

7.2.3.5. It is against that background that it is considered that these powers should remain in place for at least the next six months as they provide important assurance to those who depend on care services, their families, and the staff that deliver care, that swift action and additional oversight and support is available in the rare circumstances that it may be required. Neither a health board nor Ministers would be entitled to exercise the powers except where to do so is necessary and proportionate.

7.2.4 Section 3 and schedule 2, Part 1 – Criminal justice – Expiry of undertaking under section 25(2)(a) of the Criminal Justice (Scotland) Act 2016

7.2.4.1. This provision provides the court with the power to prevent the expiry of an undertaking and any conditions attached to it by changing the time the person is due to appear at court.

7.2.4.2. By preventing the expiry of undertakings in this way, the measure has allowed the Crown Office and Procurator Fiscal Service (COPFS) to review the previously extended undertaking timescales, so dates may revert back to within 28 days of liberation, and 14 days for domestic abuse cases.

7.2.4.3. Retaining this provision will ensure the court continues to have the power to prevent the expiry of an undertaking and any conditions attached to it. If a person fails to appear at court as required by the terms of their undertaking, the court considers that the failure to appear is attributable to a reason relating to coronavirus and it is not appropriate to grant a warrant for the person’s arrest.

7.2.4.4. This enables the preservation of protective conditions of undertaking that may otherwise be lost where a person fails to attend court due to coronavirus and is a key measure to preserve public and victim safety during the coronavirus outbreak, particularly in sensitive cases of domestic abuse

UK Act

7.3.1 Section 10 and schedule 9 – Temporary modification of mental health legislation

7.3.1.1. Throughout the pandemic, we have engaged with key stakeholders through the Scottish Government's Short Life Mental Health Legislation Commencement Consideration Group to monitor and review the need to commence the temporary provisions on an ongoing basis. The group agreed that the data and evidence of impact on services and workforce is paramount when considering whether there is a need to commence the legislation. We know that there has been an increased level of demand on mental health services both in terms of support services for those with poor mental wellbeing, but also on psychiatric services from people with more severe mental ill health. Therefore, we feel that it remains necessary to retain these provisions at present to provide additional flexibility given the current climate.

7.3.2 Section 49 and schedule 19 – Health Protection Regulations: Scotland

7.3.2.1. Section 49 and schedule 19 commenced on Royal Assent and came into force on 25 March 2020. The provisions give the Scottish Ministers power to make regulations for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination with coronavirus in Scotland. These powers have been used to make regulations to provide for restrictions on movement and activities during the pandemic. The regulations made using these powers in this Eleventh reporting period are as follows:

• 2 December 2021: The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 4) Regulations 2021 (SSI 2021/453) were made. These Regulations amend the Health Protection (Coronavirus) (Requirements) (Scotland) Regulations 2021 (the ‘Requirements Regulations’) to provide that a negative test for Covid-19 is an alternative to vaccination for the purposes of permitted attendance at certain premises.
• 16 December 2021: The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 5) Regulations 2021(SSI 2021/475) were made. These Regulations amend the Requirements Regulations to expand the existing requirement in regulation 4 on people who are responsible for a place of worship, carrying on a business or providing a service to have regard to guidance issued by the Scottish Ministers about measures to minimise risk of exposure to coronavirus. The new provision also requires such people to take such of those measures as are reasonably practicable to minimise the incidence and spread of coronavirus on their premises. The Regulations also extend the distance from 1 metre to 2 metres where an exemption from wearing a face covering applies in certain indoor settings. This includes in the workplace; when leading an act of worship; rehearsing or performing; or in certain parts of a marriage ceremony.
• 23 December 2021: The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 6) Regulations 2021(SSI 2021/496) were made. These Regulations amend the Requirements Regulations to introduce a requirement to take measures to ensure, so far as reasonably practicable, that a distance of 1 metre is maintained between people in or waiting to enter hospitality and leisure premises and that only as many people are admitted to the premises as would allow the 1 metre distance to be maintained. The Regulations also introduce a requirement for table service in premises where alcohol is sold for consumption on the premises, and that the customer must remain seated whilst consuming food and drink on the premises. The Regulations also introduce capacity limits for live events held indoors and outdoors - 100 people at indoor standing events, 200 people at indoor seated events and 500 people at outdoor events (whether seated or standing).
• 23 December 2021: The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 7) Regulations 2021(SSI 2021/497) were made. These Regulations amend the Requirements Regulations to close nightclubs, dance halls or discotheque premises, subject to exceptions, from 5.00 a.m. on 27 December 2021. It would remain open to these businesses to operate the premises with distancing and table service, rather than as a nightclub, dance hall or discotheque.
• 24 December 2021: The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No. 8) Regulations 2021(SSI 2021/498) were made. These Regulations amend the Requirements Regulations to allow nightclubs to adjust their operations so as to not operate as a nightclub for the purposed of remaining open in line with these regulations, without being in breach of any licensing arrangements.
• 13 January 2022: The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment Regulations 2022 (SSI 2022/6) were made. These Regulations amend the Requirements Regulations to remove the legal requirement for one metre physical distancing in the Requirements Regulations at outdoor event venues, outdoor exhibitions and outdoor spaces in sports stadia. The Regulations also amend definitions in the Requirements Regulations in relation to the certification requirements. The Regulations also remove the requirement in the Requirements Regulations that a person must not organise an outdoor event of more than 500 people.
• 20 January 2022: The Health Protection (Coronavirus) (Requirements) (Scotland) Amendment (No.2) Regulations 2022 (SSI 2022/13) were made. These Regulations amend the Requirements Regulations to remove the capacity limits for live events held indoors and the definition of a live event. The Regulations also remove the requirement to take measures to ensure, so far as reasonably practicable, that a distance of 1 metre is maintained between people on or waiting to enter hospitality and leisure premises and that only enough people are admitted to the premises to allow the 1 metre distance to be maintained. The Regulations also remove the requirement for table service in premises where alcohol is sold for consumption on the premises, and that the customer must remain seated whilst consuming food and drink on the premises. The Regulations also remove the requirement for the closure of nightclubs to members of the public and amend the definition of ‘late night premises’ in the Requirements Regulations in relation to the certification requirements.

Associated guidance on regulations made under schedule 19 has been regularly updated – see here for the current guidance on the Requirements Regulations - Coronavirus (COVID-19): guidance - gov.scot (www.gov.scot).

7.3.2.2. Regulations under schedule 19 must be reviewed at least every 21 days to ensure that the measures they impose continue to be necessary and proportionate. In between these formal reviews, the individual measures are kept under continuous review. Changes arising from any review are set out to the Scottish Parliament in plenary and considered by the Parliament's COVID-19 Committee.

7.3.2.3. Changes to regulations under schedule 19 are assessed through the Four Harms approach, which draws on evidence and analysis to assess both current and future direct and indirect health impacts and the social and economic impacts of the pandemic and of proposed regulations. Underpinning this is Scotland’s Strategic Framework which describes our latest approach to managing the pandemic. It was last updated on 16 November 2021.

7.3.2.4. In addition, the Modelling the Epidemic series provides outputs from modelling of the spread and level of the epidemic by Scottish Government, as well as results by modelling groups feeding into the SAGE consensus. These help ensure a robust, peer-tested and up to date picture informs decisions.

7.3.2.5. Public Health Scotland (“PHS”) also publish a COVID-19 weekly statistical report. This presents key information on the rollout of the vaccine, volumes of tests and data on Covid transmissions, prevalence of the new variant and case numbers, plus links to a range of research resources and tools.

7.3.2.6. Four Harms: Throughout the pandemic, decisions about restrictions and requirements have been taken on the basis of public health and clinical advice, and an assessment against the four harms caused by the virus. These decisions require judgement to be applied to the facts and considerations relevant at the time they are made. Decisions take in clinical advice from the National Incident Management Team and Scottish Government clinical leads – around the Harm 1 direct health impacts from COVID. Directors of Public Health monitor data on a daily and weekly basis and SG officials update the suite of indicators weekly. The National Incident Management Team considers this information alongside local data and analysis in providing public health advice.

7.3.2.7. This is brought together with evidence and the assessment of impact on the other Harms caused by the virus – including the indirect health harms, the social harms and harms to the economy. Wider considerations are also taken into account such as the prevalence of infection elsewhere, or of the characteristics of new variants – which might suggest differential impacts.

7.3.1.1. Measures imposed by regulations must be necessary and proportionate. Whilst statutory measures aim to deal with a significant threat to public health, throughout the development of the regulations and guidance, the Scottish Government has always had regard to the need to protect human rights, equality considerations, the impact on business and the particular needs of island communities as part of the policy development process. Appropriate impact assessments are carried out as part of this process and are reported to the Scottish Parliament. They can be found on www.legislation.gov.uk under the appropriate instrument.