Coronavirus Acts: fifteenth and final report to Scottish Parliament (October 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 Extension and Expiry 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 of the first Scottish Act 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 August 2022, the First-tier Tribunal (Housing and Property Chamber) confirmed that it had received 1894 applications that fall within the scope of the emergency provisions. As of 12 September 2022, 769 had the order granted, 43 were refused, 145 were rejected at sifting, 548 were withdrawn and 38 were dismissed..

7.1.1.3 An analysis of the decisions made by the First-tier Tribunal (Housing and Property Chamber) shows that between 9 July 2020 and 1 September 2022, there have been a total of 356 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 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, rose again to £174.5m by end of December 2021,k and then dropped to £169.6m as at end March 2022 based on the latest published Scottish Housing Regulator annual charter data for 2021-22.

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), 4,417 notices issues in the quarter July to September 2021 (an average level of 1,472 per month), 4,215 notices issued in the quarter October to December 2021 (an average level of 1,405 per month) and 4,152 in the latest quarter January to March 2022 (an average of 1,384 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), 469 actions (an average of 156 per month) in the quarter July to September 2021, 409 actions (an average of 136 per month) in the quarter October to December 2021, and 629 actions (an average of 210 per month) in the latest quarter January to March 2022, levels which are significantly lower when compared to average monthly figures for previous years.

7.1.1.6 The Scottish Ministers expired the extended notice period provisions within Schedule 1 of the first Scottish Act on 30 March 2022. All pre-coronavirus notice periods returned from 31 March 2022.

7.1.1.7 Paragraph 8 of schedule 1 provided 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. This power was also expired on 30 March 2022.

7.1.1.8 The provisions relating to Tribunal discretion were extended until 30 September 2022, at which point the provisions became permanent through Part 4 of the Recovery and Reform Act.

Additional Support

7.1.1.9 Additional reporting requirements under section 6(1) of the Extension and Expiry Act require details of the measures in place to protect tenants from eviction and any plans for further measures.

7.1.1.10 In relation to the additional measures in place to protect tenants, the Scottish Government allocated a funding share from a £10m Tenant Grant Fund (TGF) to all 32 local authorities, in order 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. All local authorities were asked to provide monitoring reports on the operation of the grant fund to 31 December 2021 and a further spending report was submitted to the Scottish Government the following month, providing a spending 'snapshot' up until 31 January²⁰. This shows that over £1.8 million in grant has been paid to a total of 1,354 households, helping to sustain tenancies and prevent potential homelessness. The next set of data will cover the three month period up to 31 March 2022 and will be published once all 32 local authorities have provided the relevant information. To date, data until 31 March 2022 detailing expenditure, grant and refusal figures have been obtained for 28 local authorities. This shows £5,143,119.56 expenditure, 4,430 grants and 1,326 refusals.

7.1.1.11 Although the fund was initially set up to mitigate arrears accrued between 23 March 2020 and 9 August 2021, it was recently announced in this year's programme for government that we will extend the eligibility criteria of the Tenant Grant Fund, allowing local authorities to use any remaining funds to prevent homelessness for those who have built up more recent arrears. As the TGF was provided to local authorities (LAs) as General Revenue Grant, any underspend for the initial period was placed in LA reserves to be used this financial year, 2022/23. LAs have therefore already received the funding.

7.1.1.12 In 2022/23 the Scottish Government will be investing up to £88.2 million in discretionary housing payments (DHPs) to help people maintain their tenancies and prevent homelessness. From the £88.2 million, £68.1 million will be used to fully mitigate the bedroom tax helping over 91,000 households in Scotland to sustain their tenancies. An additional £20.1 million assists with the cost of living and mitigates against the damaging impact of other UK Government welfare cuts including mitigating the benefit cap, as far as we are able within our powers, and the ongoing freeze to Local Housing Allowance rates. This figure includes an additional £5 million announced in the Programme for Government, subject to the emergency budget review, so that local authorities can help people on low incomes who are struggling with rising energy bills. This additional funding will help local authorities deal with increased demand for DHPs and will be a lifeline for those who need help to heat their homes.

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 that the extended time limits were necessary during this reporting period. Evidence submitted by COPFS to the Criminal Justice Committee in March 2022 stated that there were currently 14,000 summary-only cases awaiting marking, 25% (around 3,500) of which were past their pre-pandemic time limit. Their evidence also noted that the number of sheriff and jury cases being prepared to bring before court has risen by 84% since March 2020 from 3,442 to 6,345. 742 cases are already older than the pre-pandemic time limit to be indicted, while a further 661 cases are approaching the pre-pandemic time limit. 854 of these cases have at least one accused in custody, of which 248 are older than the pre-pandemic time limit for service of indictment, while the remaining 606 are close to it. If the time limit extension provisions were not extended, this would result in an immediate requirement for 990 applications to extend time limits, with hundreds more over the coming months.

7.1.2.2. COPFS noted in their written evidence that as of 1 January 2022, there were 1,934 live cases in all High Court units – a 55% increase in live cases compared to April 2020. At that point there were 339 cases which were over 7 months from the date of first appearance on petition and if the time limit extension were to cease imminently, COPFS would require to make at least 339 applications to the court to extend relevant time limits for the service of the indictment. There were 850 High Court cases which were awaiting a trial date. Notably, none of the cases, custody or bail, scheduled for trial to commence between 10 January 2022 and 30 April 2022 were within the pre-pandemic time limit for a trial to commence. There is no evidence to suggest the situation in terms of the court backlog has significantly improved since this data was collected. In summary, if the time limit extension provisions were not in effect, a large amount of resource would require to be diverted to make applications to extend time limits on a case-by case basis, which would in turn impact on the ability of prosecutors and courts to address the backlog of cases. In that evidence, with regard the solemn case backlog, they noted that "Substantial improvement in this situation is forecast to take several years." The provisions in the first Scottish Act expired at the end of 30 September 2022. Part 5 of the Schedule of the Recovery and Reform Act makes provision to temporarily extend time limits.

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). Full details of that process were provided in update reports in 2020. The Recovery and Reform Act has made similar provision to this power. It commenced on 1 October 2022 and remains in force until 30 November 2023, with potential to further extend it to November 2025

Second Scottish Act

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

7.2.1.1 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.

7.2.1.2 Schedule 1 of the first Scottish Act made 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 ensured that the Tribunal considers the reasonableness of making a repossession order during the coronavirus pandemic.

7.2.1.3 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 Part 2 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.

7.2.1.4 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.

7.2.1.5 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.

7.2.1.6 Parliament agreed that both the pre-action requirements on ground of rent arrears and the associated Tribunal discretion provisions be extended for a final 6 months until 30 September 2022, at which point the provisions became permanent through the Recovery and Reform Act.

7.2.1.7 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.

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

7.2.2.1 Although these powers had been commenced and were 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.

7.2.2.2 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.

7.2.2.3 No further regulations have been made under powers in section 65B during this fifteenth and final reporting period.

7.2.2.4 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. The Office for National Statistics has estimated that 1 in 45 people in Scotland were testing positive for coronavirus in the week ending 5 September. The number of outbreaks in care homes has decreased; as at 6 September 2022, there were 85 care homes (8%) with a current case of suspected coronavirus. This is similar to 87 (8%) at 30 August 2022. There were 3 coronavirus related care home death notifications week ending 4 September 2022. This is 11 fewer deaths overall and four fewer deaths in care homes compared to the previous week (seven coronavirus-related deaths in care homes out of 41 coronavirus-related deaths overall).

7.2.2.5 Furthermore, there is some 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. Good progress has been made in vaccinating residents with the 4th dose, although the effect of vaccination is not permanent. 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 Section 2 and Schedule 1, Part 8 - Powers to purchase care home services and care at home providers

7.2.3.1 The provisions in section 2 and paragraphs 18 to 20 of schedule 1, Part 8 set out temporary powers available to Local Authorities to purchase, by agreement, a care home or care at home services. It also sets out the powers available to Health Bodies (a Health Board, the Common Services Agency and Health Improvement Scotland) to acquire a care home, by agreement, on behalf of Scottish Ministers.

7.2.3.2 Although these powers had been commenced and were available, they have not been used in the reporting period. Neither a health body nor a Local Authority has acquired a care home, nor has a Local Authority acquired a care at home service, under these voluntary purchase powers. Consequently, Scottish Ministers have not required to direct a health body to seek voluntary acquisition of a care home under these powers.

7.2.3.3 The factors considered to determine continued necessity of the powers during the reporting period are set out in section 7.2.2. The provisions expired at the end of 30 September 2022.

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

7.2.5.1 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. By preventing the expiry of undertakings in this way, the measure ensures the court has the power to preserve 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. This measure enables the undertaking regime, which operates as an alternative to continued police custody, to continue to work effectively whilst providing the necessary protections for the public, including victims, as a whole.

UK Act

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

7.3.1.1 Section 49 and schedule 19 came into force on 25 March 2020. The provisions gave 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 had been used to make regulations to provide for restrictions and requirements during the pandemic. These provisions had been extended until 24 September 2022. There have been no regulations made using these powers in this fifteenth and final reporting period.

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

7.3.1.3 The Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 (SSI 2020/262) were the last set of regulations made under schedule 19 that remained in force. They automatically expired on 24 September 2022. By virtue of amendments to the Public Health etc. (Scotland) Act 2008 made by the Recovery and Reform Act, which came into force on 1 September 2022, sufficient powers are now available to make regulations along the lines of the Health Protection (Coronavirus, Restrictions) (Directions by Local Authorities) (Scotland) Regulations 2020 in the future, should that prove necessary.