Cost of Living (Tenant Protection) (Scotland) Act 2022 - 2nd proposed extension: statement of reasons

6. Provisions proposed for extension

6.1 Schedule 1: Rent Cap for residential tenancies (Paragraphs 1 and 2 of Schedule 1 of the Act)

6.1.1 The Act introduced a temporary cap on in-tenancy rent increases for the majority of private sector tenancies (initially set at 0%), which was backdated to 6 September 2022 in order to prevent landlords seeking to increase a tenant's rent between the Programme for Government announcement of the 'rent freeze' and commencement of the Act.

6.1.2 The 'permitted rate' (the 'rent cap') has been set at 3% since 1 April and applies to most existing tenancies in the private rented sector. There are no restrictions on rent setting for any new tenancies; the rent cap only restricts in-tenancy rent increases.

6.1.3 Notwithstanding the rent cap, landlords have a safeguard available to them and can apply to Rent Service Scotland (RSS) to increase the rent for a let property above the rent cap (up to 6%) in connection with defined 'prescribed property costs'. Landlords must give their tenant notice in writing when they make such an application.

6.1.4 An application may only be made if a landlord has had an increase in these defined costs, during the preceding six months, and 'prescribed property costs' are defined as follows:

• the interest payable in respect of any mortgage or standard security over the rental property;
• any insurance premium payable by a landlord relating to insurance connected to offering the property for rent, for example 'landlords' insurance' (excluding general building and property insurance); and
• any 'service charge(s)' related to the rental property that are recoverable from the tenant via their rent as part of the contractual arrangement between tenant and landlord.

6.1.5 A landlord can apply to increase the rent to recover up to the lower of either 50% of the increase in these costs or 6% of the existing rent. The existing protection which only allows a landlord to raise rents once per 12 months still applies.

6.1.6 If an application is approved by RSS, the resultant rent increase will not come into effect until (at the earliest) 12 weeks after the date the landlord made the application. A landlord or tenant is able to appeal the RSS' decision by applying to the First-tier Tribunal for Scotland (Housing and Property Chamber) within 14 days to have the RSS calculation reviewed.

6.1.7 As of 29 May 2023, RSS have received the following applications:

Table 1: Summary of applications received by Rent Service Scotland under the Cost of Living (Tenant Protection) (Scotland) Act 2022

Timeframe	Landlord 3% Prescribed Property Costs application	Landlord 6% Prescribed Property Costs application	Tenant rent cap verification request application
28 October 2022 to 31 March 2023	47 applications received and 38 decisions made.
1 April 2023 to 29 May 2023		603 applications received and 446 decisions made	16 applications received and 16 decisions made

6.1.8 Since 1 April 2023, 16 Tenant verification applications have been received of which 10 were verified at the 3% cap. 6 applications had rent increase notices that exceeded the 3% cap, 1 at 6%, 2 at 7%, 1 at 15%, 1 at 25% and 1 at 45% and these were capped at 3% by the Rent Officer.

6.1.9 47 Landlord applications for 3% prescribed property costs were received up to 31^st March 2023 with 20 incomplete applications having to be returned and 0 withdrawn. 38 decisions were made and 9 decisions have not been made as no supporting documentary evidence of costs were received. Of the 47 applications, 47 were for interest payable in respect of a mortgage or standard security, 0 were for landlord insurance other than general building and contents and 0 were for service charges relating to the property.

6.1.10 Since 1 April 2023, 603 Landlord applications for 6% prescribed property costs have been received with 191 incomplete applications having to be returned and 1 withdrawn. 446 decisions were made. Of the 603 applications, 595 were for interest payable in respect of a mortgage or standard security, of this 595, 15 also requested an increase due to landlord insurance and 3 requested an increase for all 3 prescribed costs; 1 was for landlord insurance other than general building and contents and 7 were for service charges relating to the property.

Consultation

6.1.11 The 2^nd Call for Evidence, along with ongoing informal consultation with stakeholders, has provided valuable information on the views of key stakeholders – including landlords, tenants, housing rights organisations and investors – on the operation and impact of the measures. Scottish Ministers have considered these as part of assessing the continued necessity and proportionality of the measures.

6.1.12 In addition, Scottish Government officials continue to discuss the emergency Act and its impact with a range of tenant, landlord, investor and educational representative bodies as part of wider rented sector discussions.

6.1.13 The Private Rented Sector Stakeholder Group (as per para 5.3) has been formed which comprises of tenant, landlord and investor representation from across the private rented sector. The primary remit of this group is to inform the policy development for our proposed longer-term rented sector reforms in Scotland. Whilst the emergency Act is not the primary focus of the Stakeholder Group, it has formed part of discussions and feedback derived in this setting has been valuable.

Necessity and Proportionality

6.1.14 In order to assess the use and continued necessity and proportionality of the private rented sector rent cap and safeguards, Scottish Minsters have taken into account:

• the evolving economic context and the likely impact on households resident in the private rented sector;
• information from stakeholders regarding the impact and effect of the measures on landlords and tenants to date; and
• information from other sources to seek to identify any unintended or unanticipated impacts that may have arisen as a result of the measures.

6.1.15 The concerns detailed by consultees in response to the Call for Evidence have been carefully considered but there remains limited supporting information that demonstrates the potential effects raised.

6.1.16 For example, there is no strong empirical evidence at present to substantiate the anecdotal claims from some consultation respondents that landlords are leaving the sector. The most comprehensive up-to-date measure of the overall supply of privately rented properties is the number of properties registered on the Scottish Landlord Register. There are some limitations of this data source, such as the fact that registrations last for a period of three years and there could be a time lag in landlords de-registering properties which are no longer available for rent. In the case of any landlords looking to leave the sector or reduce their portfolio, it should also be recognised that the process could take several months from freeing up properties to completing sales.

6.1.17 Nevertheless, subject to these limitations, Figure 1 shows that the number of registrations has been steady across the period January 2022 to April 2023. In particular, the number of properties registered in April 2023 was slightly (0.4%) higher than in August 2022. We will continue to track data from the Scottish Landlord Register on a monthly basis.

6.1.18 Taking account of the overall evidence on the impact of the cost crisis, at present the rent cap provisions remain necessary and continue to pursue the prescribed aim in the public interest of ensuring that tenants in the private rented sector were, and are, protected against the impact of the wider economic conditions, through stabilisation of their housing costs. This is at a time when the economic data demonstrates that the cost crisis is continuing to have a significant and detrimental impact on household finances, and particularly those living in the private rented sector.

6.1.19 The Scottish Government therefore considers that it is necessary and proportionate for the measures which cap in-tenancy rent increases in the private rented sector to be extended.

6.1.20 In terms of the proportionality of the rent cap, there are powers to amend the level of the rent cap combined with the ability to vary the landlord safeguard (provided through the prescribed property costs provisions), enabling Scottish Ministers to take tailored and agile action in response to any changes in the economic environment. This enables them to ensure that their response continues to be proportionate – as already demonstrated in the regulations which came into force on 1 April 2023, increasing the rent cap from 0% to 3% and the prescribed property costs safeguard from 3% to 6%.

6.1.21 Having assessed the up to date economic assessment, the Scottish Government considers that the rent cap continues to strike a fair balance between the public interest and the interference with landlords' rights inherent with the measures. No further changes are deemed to be necessary at this present time, due to the economic evidence available on the impact of the continuing cost crisis.

6.1.22 Statistics provided by Rent Service Scotland show that a proportion of private landlords are making use of the safeguard, where they can evidence defined prescribed property costs. As of 29 May 2023, 603 applications have been made by private landlords under the 6% prescribed property costs safeguard. There are around 340,000 privately rented properties in Scotland.^[19]

6.1.23 As set out during the passage of the Bill, the purpose of including the provision for landlords to make an application to have a rent increase considered in respect of defined prescribed property costs was to provide a suitable safeguard which takes account of the individual circumstances of landlords. We have reviewed the level and those property costs that are permitted to ensure that they strike a balance. Based on the evidence provided by stakeholders and set out in Section 3, we remain of the view that the prescribed property costs remain necessary and proportionate in balancing the rights of tenants and landlords, and taking account of the impact that the cost crisis may be having on some landlords.

6.1.24 The current approach is finely balanced and there will continue to be close monitoring of economic data and gathering of evidence on impacts of the measures. Evidence on whether, or not, the financial burdens on households begins to lift will be closely monitored alongside the impacts of the rent cap measures. Whether, or not, emerging and contemporaneous evidence supports an amendment to the level of the rent cap or and/or safeguards continuing to be necessary and proportionate remains under continued consideration.

6.1.25 The Scottish Government has considered the implications of expiry or suspension of the rent cap in the private rented sector. With no cap on rent increases, tenants in the private rented sector would have little protection against high in-tenancy rent increases at a time of ongoing pressure on household finances, due to the high increases in market rents.

6.1.26 The Scottish Government is of the view that the extension of the rent cap measures in the private rented sector, if approved by Parliament:

i. would be likely to positively impact on equal opportunities across those with protected characteristics, as this provision will continue to provide tenants with greater confidence about their housing costs and the security of a stable home;

ii. would not have any detrimental impacts on island communities, local government and sustainable development;

iii. would continue to help address socio economic disadvantage and reduce the inequalities that are associated with being disadvantaged;

iv. would appropriately and proportionately balance the interests of landlords by taking into account that the ongoing impacts of the cost crisis may also be experienced by some landlords, the application of a safeguard allowing a landlord to make an application to increase the rent to a level above that which is offered by the rent cap, in connection with prescribed property costs, would continue to allow for the individual circumstances of landlords to be taken into account; and

v. would not negatively impact the rights and wellbeing of children and by reducing the harms caused by eviction for children and their families, the Act is contributing to promoting the health of children and young people and supporting their education.

6.1.27 As part of assessing the continued necessity and extension of the rent cap provisions, we have reviewed the impact assessments carried out as part of the development of the Act and the available data and evidence on operation of the provisions since they came into force. More information on this can be found in Annexes E, F and G.

6.1.28 The Scottish Government considers that the purpose of the rent cap provisions (as per the draft Regulations laid alongside this Statement^[20]), which is the social protection of tenants (by stabilising their housing costs), remains a legitimate aim.

6.1.29 The Scottish Government considers that extension of the rent cap measures is an proportionate and necessary response to the ongoing cost crisis, and strikes an appropriate and proportionate balance between the public interest in the form of protection for tenants during the current economic situation, and the property rights of landlords.

6.2 Schedule 2: Rent cap for student residential tenancies (as defined by paragraph 4 of Schedule 1 of the Act)

6.2.1 The rent cap provisions relating to student residential tenancies (paragraph 4, Schedule 1) were suspended on 30 March 2023.^[21] The suspension of the rent cap in relation to student residential tenancies was necessary due to the evidence of minimal impact with regard to that particular part of the rental sector.

6.2.2 Suspension of the rent cap provisions for student residential tenancies means that they ceased to have effect as at the date of their suspension but a power for the provisions to be revived during the lifetime of Part 1 of the Act exists, should evidence support that being necessary and proportionate.

6.2.3 Although assurances were received from the majority of institutional and Purpose Built Student Accommodation providers that there would be no in-contract rent increases, these assurances do not cover all providers with certainty, and it is therefore proposed that the suspended provisions are extended – in their current form – to allow for them to be revived, should the evidence show that this was necessary and proportionate.

6.2.4 While a number of institutions have increased accommodation costs in the Purpose Built Student Accommodation they own by up to 9%^[22], these increases apply to new tenancies for the coming academic year and, as such, would not have been covered by the provisions in the Act, given that the Act as a whole covers only in-tenancy rises, not those for new tenancies. It is the annual re-letting of tenancies in the Purpose Built Student Accommodation sector which means that the Act provisions apply in a very different way, rather than that they are Purpose Built Student Accommodation. The current Review of Purpose Built Student Accommodation, which considers a number of issues including affordability, is nearing completion and officials are working with the Review Group to finalise and agree recommendations for Ministers.

6.2.5 There is no proposal at present to revive these provisions.

6.3 Protection against eviction (Eviction from residential properties: restrictions on enforcement). Schedule 2 of the Act, sections 1, 2, 3, 4, 5 and 6

Description and Operation of the Provisions

6.3.1 Part 1, Schedule 2 temporarily pauses the enforcement of eviction actions in the private rented, social rented and student accommodation sectors from 6 September 2022 onwards, with relevant exemptions in relation to specified circumstances, and it also amends the process for the determination of damages for an unlawful eviction.

6.3.2 The temporary moratorium on evictions aims to help to reduce the negative impacts on the health and wellbeing of tenants caused by being evicted and/or being made homeless during the cost crisis. It provides more time for people to seek support and to find alternative accommodation that meets their needs and some responses to the call for evidence (considered below) indicate that the evictions moratorium provisions may be contributing positively to that aim. In response to the Call for Evidence, City of Edinburgh Council stated: "Tenants within the Private Rented Sector have longer periods of time in the property if notice is served. This means that further prevention activities can be achieved and where possible, homelessness can be avoided."

6.3.3 A number of safeguards are in place to allow evictions to proceed without the moratorium in limited circumstances. The pause does not apply where:

• the tenant has engaged in antisocial or criminal behaviour (student residential tenancies, private and social sectors);
• the tenant has abandoned the property (private and social sector);
• where the property is to be sold by a lender (private sector only);
• the tenant is no longer an employee of the landlord (private and social sector); and
• the property is subject to demolition or requires substantial work and suitable alternative accommodation will be available for the tenant (social sector only).

6.3.4 There are also three amended/new temporary grounds for eviction where the moratorium will not apply where:

• landlord intends to sell the let property due to financial hardship (this applies to private sector only);
• landlord intends to live in the let property due to financial hardship (private sector only);
• tenant has substantial rent arrears which add up to 6 months' rent or more in the private rented sector, or £2,250 or more in the social rented sector (private and social rented sectors).

6.3.5 If an eviction order is granted by the Tribunal or Sheriff Court for any of these reasons, the eviction order can be progressed in accordance with the rules that apply to these eviction grounds. Where an eviction order or decree was granted before the legislation came into force or where the landlord raised eviction proceedings before the legislation came into force and served an eviction notice before the announcement on 6th September 2022, the case will not be caught by the moratorium and will still be able to be enforced in line with the normal legal requirements in place prior to the emergency legislation.

6.3.6 As set out above, where a landlord is prevented from enforcing an order for eviction while the moratorium is in effect, the enforcement of that order can only be delayed for a maximum period of 6 months.

6.3.7 As of 30 May 2023, data from the First-tier Tribunal (Housing and Property Chamber) shows that there have been a total of 1,412 applications for eviction from September 2022 to 30 May 2023. This is an increase from the same period the previous year, when there were 1,133 applications for evictions, although volumes in the previous year will have been impacted on by eviction measures in place through the Coronavirus (Scotland) Act 2020. The total number of eviction applications includes eviction action relating to the Coronavirus Act period, post Coronavirus Act period and under the Cost of Living (Tenant Protection) (Scotland) Act 2022. Data on the status of these applications is only available in relation to Coronavirus Act cases and Cost of Living Act cases (detailed below), and it is therefore not possible to indicate how many of the total number of applications resulted in an Order for eviction being granted, refused, or withdrawn.

6.3.8 Out of the total number of eviction applications, 630 fall within the scope of the Act's provisions. Of the 630 applications received, 350 are awaiting outcome. The remaining 280 applications are broken down as follows:

Table 2. Number of First-tier Tribunal (Housing and Property Chamber) eviction applications falling within the scope of the Cost of Living Act provisions, by status and month of outcome as at 30 May 2023

	Granted	Refused	Rejected	Withdrawn	Dismissed
Sep-22	-	-	-	-	-
Oct-22	-	-	-	-	-
Nov-22	-	-	-	-	-
Dec-22	-	-	1	11	-
Jan-23	-	-	3	17	-
Feb-23	6	-	3	21	-
Mar-23	32	5	4	36	1
Apr-23	25	-	3	21	-
May-23	60	-	7	23	1
Total	123	5	21	129	2

6.3.9 The total of 123 evictions granted equates to a lower average monthly level than the pre-pandemic average of 69 evictions granted per month across the year 2019/20, although it may take some time for the Cost of Living Act evictions applications received so far to reach an outcome.

6.3.10 In the social rented sector only summary cause data from the Scottish Courts is available. Latest available figures on the total number of social sector summary cause eviction applications registered at courts show a decrease over the period since August 2022, with the number of applications registered falling from 458 in August 2022 to 308 in March 2023. However it should be noted that these are overall figures and do not specifically identify the number of applications that fall within the scope of the emergency legislation. Whilst eviction application figures in March 2023 remain above the monthly levels seen prior to this each month between April 2020 and July 2022, the Coronavirus (Scotland) Act 2020 was in force from 7 April 2020 to 30 September 2022 and had a significant impact on the number of summary cause eviction applications registered by the courts during this period.

6.3.11 Feedback from the call for evidence shows minimal concern on the operation of the moratorium, the main view being that this is mostly due to eviction already being a last resort for social landlords and therefore the eviction moratorium provisions for the social sector are having a minimal impact. However,

a number of social sector representatives did outline concerns about the definition of substantial rent arrears in the emergency Act, as it is being perceived by some tenants as an acceptable level of debt to accrue before action can be taken.

Consultation

6.3.12 In order to assess the continued necessity and proportionality of the provisions, the Scottish Government has considered various sources of information, formally and informally, including a 2^nd Call for Evidence to key stakeholders – issued to landlord and tenant representatives, housing rights organisations, investors and educational establishments and providers of student accommodation. We also sought written evidence on the impact of the measures from local authorities and persons who represent the interests of tenants and landlords that may be affected by the provisions, and any other person considered appropriate.

6.3.13 Tenants' representatives reported being broadly supportive of the moratorium. Age Scotland said they "supported the emergency response to protect households living in the private rented sector from unsustainable in-tenancy rent increases and eviction proceedings" particularly given the "financial pressures facing low income households across Scotland, especially […] higher energy costs." Feedback from Citizens Advice Scotland noted that: "the provisions in the Act have helped to support some private tenants, in terms of […] delaying or even avoiding eviction during the cost of living crisis".

6.3.14 There are continued concerns amongst private and social rented sector landlord representatives, suggesting that the moratorium has encouraged both the non-payment of rent and reduced the incentive for tenants in rent arrears to work with their landlord to repay arrears, leading to larger rent arrears putting the tenancy at risk. In addition, it has been suggested that private landlords may be becoming more cautious in the selection process for new tenancies, which could lead to an increase in homelessness for those more vulnerable households who may be considered a higher risk to house. However, it was also highlighted that the moratorium has made some landlords more willing to engage with their tenants, provided more time for prevention activities before moving towards legal action and encouraged more active support to help tenants sustain their tenancy.

6.3.15 In addition, to provide an indication as to the impact of these provisions on Sheriff Officers going forward, we are continuing to engage with The Society of Messengers-at-Arms and Sheriff Officers to collect information on enforcement of evictions.

6.3.16 Whether there have been any unintended or unanticipated impacts arising from the measures is being assessed, but there is limited data available to date, to verify the extent and validity of the issues raised. This will continue to be investigated and monitored closely.

Necessity and Proportionality

6.3.17 In order to assess the use and continued necessity and proportionality of these provisions across the private, social and student accommodation sectors, the Scottish Minsters have taken into account the evolving economic context of the cost crisis which continues to place pressure on households, along with evidence from key stakeholders regarding the impact and effect of the measures on landlords and tenants. Each sector is considered in turn as follows:

Private rented sector

6.3.18 As noted above, while there have been a total of 630 applications for eviction under the Act, of these only 123 have been granted with the first determinations being made in February. Alongside the moratorium there are existing safeguards for landlords experiencing financial hardship, and there is a maximum additional delay of 6 months. Although there has only been a small impact on landlords, the peace of mind and protection the moratorium provision provides tenants while the rent cap is in place is significant, and it is twofold:

• firstly, avoiding landlords ending a tenancy to raise the rent. Although it is a criminal offence to evict a tenant without a court or Tribunal order or decree, the moratorium provides additional protection to tenants from unfair or unlawful eviction action pursued by private landlords in order to seek a new tenant (which would allow them to set a new, higher rent afresh because the rent cap only applies to in-tenancy rent increases) in direct response to the temporary rent freeze; and
• secondly, to help reduce impacts on the health and wellbeing of tenants associated with being evicted, and by providing those being evicted with additional time to access support and find alternative accommodation.

6.3.19 Therefore, the measures remain a proportionate and necessary approach at this time.

Social Rented Sector

6.3.20 Social rented households are more likely to have lower incomes than households in other tenures, with Scottish Household Survey results for 2019^[23] showing 60% of social rented households having a net income of £20,000 or less, compared to 38% of private rented households, 41% of households who own outright, and 14% of households buying with a mortgage.

6.3.21 Social rented households are also more likely to be financially vulnerable (defined as households with savings which would cover less than one month of income at the poverty line), with Scottish Government Statistics on Wealth in Scotland^[24] showing 63% of social rented households being estimated to be financially vulnerable, compared to 40% of private rented households, 24% of households buying with a mortgage and 9% of households owning outright.

6.3.22 Around two-thirds (66%) of social rented households are receiving some level of support for housing costs through Housing Benefit or Universal Credit, with the equivalent figure for private rented sector households being 29%^[25].

6.3.23 A number of stakeholders noted that evictions are a last resort and that therefore the moratorium has not imposed a significant impact. Therefore, the evidence of impact indicates that this is not an immediate and significant obstacle to sector practices. We consider that the measures, alongside the landlord safeguard and exemptions, remain proportionate in order to pursue the aim of helping reduce impacts on the health and wellbeing of social sector tenants by being evicted and/or being made homeless at a time when they are already struggling as a result of financial stress resulting from the cost crisis, and providing those being evicted with additional time to access support and find alternative accommodation.

Student rented sector

6.3.24 While evictions in the student sector continue to be reported as rare by sector representatives, there remains a possibility that evictions could take place. In addition, the majority of those in halls of residence and purpose build student accommodation are under the age of 21. Taken alongside the wider economic landscape associated with the ongoing cost crisis, we consider these provisions continue to be necessary in order to help reduce impacts on the health and wellbeing of tenants by being evicted and/or being made homeless at a time when they may already be struggling as a result of financial stress resulting from the cost crisis.

6.3.25 Given the reported infrequency of eviction action, alongside the landlord safeguard and exemptions, the interference with landlords' rights imposed by the moratorium is relatively minimal and is proportionate with the aim of the Act as regards these provisions and with providing those being evicted with additional time to access support and find alternative accommodation.

Proposal

6.3.26 Further extending these provisions which introduce restrictions on the enforcement of evictions will continue to give tenants more time to access alternative accommodation, helping to reduce the negative impacts on the health and wellbeing of tenants caused by being evicted and/or being made homeless at a time of greater financial stress resulting from the ongoing cost of living crisis. For tenants in the private rented sector, it will also continue to provide protection by making it easier and more meaningful for tenants to challenge an unlawful eviction and receive appropriate damages where an unlawful eviction is found to have occurred and continues to make it more difficult, more expensive and higher risk for a landlord to pursue an illegal eviction rather than going through the lawful routes, therefore continuing to dis-incentivise this behaviour.

6.3.27 As before, the Scottish Government has considered the implications of expiring the provisions restricting the enforcement of evictions in certain circumstances. As there has not been any significant change in current economic circumstances, renters remain particularly vulnerable to the continued impacts of the cost crisis. Expiring this protection at this time would mean that tenants in the private rented sector would not be protected from private landlords seeking to end a tenancy to raise rents above the rent cap. In addition, tenants in both the private and social rented sectors would not benefit from the additional time to find alternative accommodation provided by the 6 month pause in the enforcement of eviction action, which could increase the negative impact on those being evicted during the cost of living crisis.

6.3.28 Provisions under the Act include a number of safeguards for landlords. The exemptions help to ensure, alongside provision that restricts the pause in any individual enforcement action to a maximum of 6 months, that an extension of the evictions moratorium remains a proportionate and necessary response to the ongoing cost crisis. It is recognised that there are some circumstances where enforcement of an eviction order or decree should be able to proceed to protect communities and to strike an appropriate balance between protection of tenants and the property rights of landlords.

6.3.29 As part of assessing the continued necessity and extension of the provisions, we have reviewed the impact assessments carried out as part of the development of the Act and the available data and evidence on operation of the provisions since they came into force. No material changes to the findings from the impact assessments have been identified in relation to the extension of this provision.

6.3.30 The Scottish Government is of the view that extension of measures to pause the enforcement of certain evictions, if approved by the Parliament, would:

i. likely positively impact on equal opportunities across those with protected characteristics, as this provision will continue to provide support to all tenants being evicted with appropriate safeguards for landlords;

ii. would not have any detrimental impacts on island communities, local government and sustainable development;

iii. would continue to help address socio economic disadvantage and reduce the inequalities that are associated with being disadvantaged;

iv. would appropriately and proportionately balance the interests of landlords to recover their property and support to tenants vulnerable to the impact of the cost crisis by providing greater time to access support and find alternative accommodation; and

v. would not negatively impact the rights and wellbeing of children and by reducing the harms caused by eviction for children and their families, the Act is contributing to promoting the health of children and young people and supporting their education through the provision of housing stability.

6.3.31 The Scottish Government's view is that extension of this provision continues to be a proportionate and reasonable response to the cost of living emergency and appropriately balances the property rights of landlords and the protection of tenants. This is because this provision includes a range of exemptions to the restrictions on the enforcement of eviction for landlords to ensure that evictions can continue to be enforced in certain circumstances. These include where the landlord is being negatively impacted by the cost crisis and needs to sell or live in the let property to alleviate financial hardship; or if there are substantial rent arrears. In addition, where the enforcement of an eviction is paused, the pause in enforcement of any individual eviction order/decree is for a maximum period of 6 months.

6.4 Protection against eviction (Unlawful evictions: notification and determination of damages). Schedule 2, section 7 and 8

6.4.1 Further extension of these provisions would mean that the additional unlawful eviction protections would continue. These measures make it easier and more meaningful for a tenant to challenge an unlawful eviction and, where an unlawful eviction is found to have occurred to receive an appropriate level of damages. This would also continue to make it more difficult, more expensive and higher risk for a landlord to pursue an unlawful eviction rather than going through the lawful routes, dis-incentivising this type of behaviour.

6.4.2 Tenant representatives and advice groups reported being supportive of the unlawful evictions provisions. Living Rent said that the provisions had "protected tenants by clearly outlining to landlords that attempts at illegal/unlawful eviction will be severely punished" and they called for the unlawful evictions provisions to become a permanent legislative protection. Other responses said that the provisions had helped to prevent landlords abusing grounds for eviction and allowed tenants to more easily demonstrate and challenge wrongful use of an eviction ground.

6.4.3 Six cases within the scope of the Act have been made to the First-tier Tribunal for Scotland (Housing and Property Chamber) since these provisions came into force, they are in the process of being determined. This is double the number of cases determined by the Tribunal during 2022 and may demonstrate that the new process is easier and more accessible for tenants to challenge an unlawful eviction.

6.4.4 The Scottish Government considered the implications of not extending this provision, however, the measure remains necessary to support the effective operation of the rent cap and moratorium provisions, support tenants and ensure tenants can more easily challenge any unlawful practices and be appropriately compensated. Under permanent legislation, the default position is that tenants would need a professional surveyor valuation of the difference between the landlord's interest in the property with and without a sitting tenant. This is an expensive process. Feedback from stakeholders^[26] indicates that this can lead to a nil valuation creating a significant barrier to challenging an unlawful eviction.

6.4.5 The Scottish Government has assessed the potential impact of the extension of these provisions on human rights, children's rights and equality rights and considers that the extension of these measures will have a positive impact across those with protected characteristics.