Evictions - duties to consider delay: equality impact assessment results

Key Findings – Tenants

There were 2,286 evictions applications to the Tribunal in 2023-24 (adjusted for the full year). In the social rented sector there were 12,400 applications for an eviction order to the Sheriff Court in 2018-2019^[14].

RentBetter^[15] research suggests that tenant awareness of the Tribunal system is low and can be intimidating, particularly for low income tenants. Targeted awareness raising and support should therefore be considered in implementation of the measures to address these findings.

There is no available data on the protected characteristics profile of tenants or individual private landlords who are involved in an eviction application to the Tribunal or eviction proceedings in the Sheriff Court. We have therefore considered the available evidence in relation to each of the protected characteristics to inform our assessment.

Age

Young Adults

While there is no information about the age of tenants who are the subject of an eviction application or proceedings in Scotland, we know according to the Scottish Surveys Core Questions 2022, 25.5% of those living in the PRS are 16-24, 35.3% are 25-34, 15.5% are 35-44, 10% are 45-54, 6.8% are aged 55-64, and 6.9% are 65 and above. In the social sector, 11.8% are 16-24, 18.4% are 25-34, 16.3% are 35-44, 15.8% are 45-54, 17% are aged 55-64, and 20.8% are 65 and above.

Scottish Government data on Poverty and Income Inequality in Scotland^[16] shows that in the last 15 years, the youngest households (household heads aged 16-24) have been consistently more likely to be in relative poverty compared to older households. In the period 2020-23, 39% of people in households with household heads aged 16-24 were in relative poverty after housing. In comparison, the age groups 25-34, 35-44, 45-54 and 55-64 all had lower poverty rates between 17% and 23%.

Evidence from a survey of tenants conducted as part of the RentBetter project^[17] found that those who reported having less confidence to raise a dispute with their landlord tended to be those with less financial power, including those on lower incomes and in part-time work, or younger, inexperienced renters.

Children

We know that households with children are at higher risk of experiencing poverty^[18]. Households living in poverty will have less disposable income and more likely to spend a higher proportion of their monthly budget on housing costs.

A CaCHE/Joseph Rowntree Foundation (“JRF”) survey^[19] of 1,012 private renters in Scotland in 2022 found that whilst 29% of renting households without children found it difficult to afford their current rent, this rose to 37% of renting households with children.

Research by Shelter Scotland, ‘Understanding the True Cost of Evictions in Scotland’^[20], highlights evidence around the negative impact that eviction in the social rented sector has on tenants, and particularly children and the potential long lasting impact it can have.

Shelter’s report ‘Eviction of children and families: the impact and the alternatives’^[21], estimated that children live in approximately a third of all households evicted by social landlords.

Older People

Homelessness data indicates that older people are more likely to become homeless from a private rented tenancy and fail to maintain accommodation due to physical health^[22]. Data collected on the number of tenants applying as homeless as result of rent arrears in the social rented sector shows these were under 1%. 1% of homeless applications were due to rent arrears in the private sector, whilst 9% of applications were recorded as ‘Other action by landlord resulting in the termination of the tenancy’.

With regard to the age of the applicant, 53% were under 35, 32% were between 35 and 49 and 16% were 50 or above. Older homelessness applicants are also more likely to have support needs related to a physical disability or medical condition.

It is not clear from the data available how many of these homeless applications are as a direct result of an eviction application being granted by the Tribunal or Courts. Where they are however, these tenants will potentially benefit from the strengthened protections in the Bill.

A recent report^[23] indicated that 21% of older private renters say that they don’t know anything about their rights, with a further 36% saying they are unsure. This supports findings from earlier research, RentBetter^[24], which showed a low awareness of rights among all private tenants.

Provisions in the Bill set out certain factors that the Tribunal and Court may take into account when determining whether it would be reasonable to delay the enforcement of an eviction. For example, whether the timing of the enforcement would cause financial hardship to the tenant, and or have detrimental effect on the health and disability of a tenant, and for the PRS, cause financial hardship to the landlords or have detrimental effect on the health and disability of the landlord.

Based on the information available, and that the new measure will apply to all tenants who are the subject of an eviction Order or Decree the impact of the new duty on the three elements of the public sector equality duty is neutral in regards to people of different age. However, the new duty may be of particular benefit to children, who may be particularly negatively impacted by an eviction, young people (those under 35) given they make up a larger proportion of those living in the PRS, as well as older people who are more likely to be made homeless from the PRS due to ill health.

Disability

There is no data on the number of disabled people who are either a tenant or individual private landlord involved in an eviction application, or on the number of disabled people involved in eviction proceedings in the social rented sector.

According to the Scottish Surveys Core Questions 2022^[25], the proportion of adults in social rented properties who have limiting long-term physical or mental health conditions was higher than those in all other tenure types (46% in the social rented sector compared to 15.9% of those who own their home with a mortgage). The proportion of adults in the PRS who have a limiting long-term physical or mental health condition was and 23.2%.

According to evidence compiled from multiple sources for a 2022 Scottish Government analytical paper on the cost of living^[26]:

“[h]ouseholds with one or more disabled people are more likely to be in poverty. 23% of people in households with a disabled household member were in relative poverty after housing costs in 2017-20, compared to 17% of people with no disabled household members^[27]. The percentage of net income spent on housing, fuel and food is higher for households with a disabled household head. Food insecurity is also more common among adults with a limiting longstanding illness (18%). Disabled people often use more energy, as many need to keep heating on for medical reasons, or use electricity to charge essential equipment such as mobility aids. Many disabled people have needs which mean that economising on energy can bring severe hardship.”

The CaCHE/JRF survey^[28] of 1,012 private renters in Scotland in 2022 found that just over a quarter of renters (26%) who do not have a disability or long-term health condition find it difficult to afford their current rent, rising to 40% for those renters with a disability or long-term health condition.

Provisions in the Bill set out certain factors that the Tribunal and Court may take into account when determining whether it would be reasonable to delay the enforcement of an eviction. For example, whether the timing of the enforcement would cause financial hardship to the tenant, and or have detrimental effect on the health and disability of a tenant, and for the PRS, cause financial hardship to the landlords or have detrimental effect on the health and disability of the landlord.

Based on the information available, and that the new measure will apply to all tenants who are the subject of an eviction Order or Decree, the impact of the new duty on the three elements of the public sector equality duty is neutral in regards to disabled tenants and landlords. However, the new duty may particularly support disabled people who find themselves party to an eviction application enabling the impact of a delay to an enforcement on the needs of the tenant or landlord, including in relation to any disability, to be considered where this is relevant.

Sex (including pregnancy and maternity)

As with other protected characteristics there is no specific disaggregated data available on the gender of tenants who are evicted, or on individual private landlords who are repossessing a property.

According to the Scottish Survey Core Questions 2022^[29], an estimated 50.2% of those in the PRS are women. Women earn less on average than men^[30], are less likely to be paid the Living Wage^[31] and are more likely to not be working due to looking after children or home^[32]. This may lead to women having a lower independent income. Whilst there may be income pooling within a couple with a high-income and low-income earner, there will be an unequal reliance on the sharing of income to maintain their standard of living^[33].

The Wealth in Scotland^[34] report also shows that women are less likely to own property than men^[35], and lone parents (of whom 92% in Scotland are women) and working aged women with no children are the least likely groups to own any property.

Whilst a precise gender breakdown isn’t available for other household types on Housing Benefit or for households receiving the housing element of Universal Credit, the available data suggests that it is likely that women in Scotland are overall more likely to be in receipt of Housing Benefit or the housing element of Universal Credit than men^[36].

2022-2023 homelessness data^[37] indicated that women are more likely to become homeless from the PRS than men. This might indicate that women may be more likely to be the subject of an eviction application than men. Consideration of the impact of the timing of an enforcement is aimed at supporting improved outcomes for all tenants but may be particularly beneficial for women who are tenants.

Pregnancy/Maternity

Over recent years, evidence shows that households with children under one are at a heightened risk of poverty, and that families with a new child are more likely to enter poverty, even when controlling for other factors^[38]. Evidence from a recent focus report on poverty and households with babies^[39] suggests that new mothers found Universal Credit payments helped to relieve housing costs by covering their rent, however most of the interviewees were in social housing and it was suggested that private rented accommodation is unaffordable. Many within the study mentioned that having a baby prompted a change in housing; often moving out of pre-pregnancy housing to avoid overcrowding. While rental costs were not a prominent concern, mothers highlighted the challenges of securing homes which suit their family's needs.

Based on the information available, and that the new measure will apply to all tenants who are the subject of an eviction Order or Decree, the impact of the new duty on the three elements of the public sector equality duty is neutral but may be particularly beneficial to women who may be more likely to be subject to an eviction Order.

Gender reassignment

There is insufficient information about the experiences of transgender tenants and landlords to fully assess the impact of additional duties to consider a delay to the enforcement of an eviction.

Data around the prevalence and experiences of trans people in the Scottish private rental sector are limited. We do not have reliable estimates for the number of trans or non-binary people in Scotland at present, including those living specifically within the PRS, however as the next section will detail, there is evidence that other members of the LGBTI community are more likely to live in the PRS and within urban areas in Scotland.

Reported findings from a 2022 UK study of housing discrimination^[40] by Generation Rent and LGBTI homelessness organisation “akt” found that 43% of LGBTI respondents reported that they had been forced to live in unsuitable accommodation, compared with 29% of non-LGBTI participants. Insecurity and accessibility to affordable homes in the private rental market was raised as also an issue. However, limited information about the study or its underlying data were available so it is unclear as to how robust or representative these findings are.

In a published response to the recent consultation on A Human Rights Bill for Scotland^[41], the Equality Network cited (yet unpublished) data from a survey undertaken by Scottish Trans which ran from March 2023 – June 2023 and surveyed 575 trans and non-binary people from across Scotland about their experiences of housing and the cost-of-living, among other topics. The findings report experiences of discrimination by private landlords, housing insecurity, and in the case of trans respondents, the cost of living crisis causing respondents to have to make choices between necessities and gender affirming purchases. Detail of survey results and methodology were not yet available for assessment at the time of drafting so it is not possible to comment on the robustness of these findings.

The consultation response also expressed that trans people may experience an additional layer of difficulty when seeking benefits via the DWP due to administrative issues arising from either not having a GRC (gender recognition card), or due to issues caused by current and previous details such as names no longer matching on the system. According to the UK government’s national LGBT Survey Report (2018), only 12% of the trans men and trans women respondents who had either started or finished transitioning had obtained a GRC.

A 2018 report^[42] by Stonewall reported that one in four trans people (25%) were discriminated against when looking for a house or flat to rent or buy. The same proportion had also experienced homelessness at some point in their lives, while one in five non-binary people (20%) had experienced discrimination while looking for a new home.

Based on the information available, and that the new measure will apply to all tenants who are the subject of an eviction Order or Decree, the impact of the new duty on the three elements of the public sector equality duty is neutral in regards to transgender tenants and landlords. Strengthening consideration of the impact of the timing of an enforcement as part of the process for an eviction is aimed at supporting improved outcomes for all tenants including transgender tenants.

Sexual orientation

There is insufficient information about the experiences of tenants and landlords of different sexual orientations to fully assess the impact of additional duties to consider a delay to the enforcement of an eviction.

The available evidence suggests that more cis lesbian, gay and bisexual people privately rent: people living in the PRS are more likely to identify as either ‘lesbian, gay, bisexual or other’ (LGB) than the population as a whole: 6.9% compared to 2.9%^[43].Poverty and income inequality analysis data suggests the poverty rate has been consistently higher for LGBTI adults compared to straight / heterosexual adults. In the period 2020-2023 it is estimated that 25% of those identifying as LGB+ were in relative poverty after housing costs, compared to 19% of straight adults^[44]. However, it should be noted that the analysis flags that there were too few LGB+ identifying adults in poverty in the sample to produce a robust estimate of their population and measurement uncertainty is quite wide for this group.

A 2021 report by the Scottish Government on inclusivity in rural areas^[45] which drew on multiple data sources found that there is a higher prevalence of lesbian, gay, bisexual or ‘other’ people in urban areas, which may partially reflect experiences of LGBTI people of having moved to a different area due to their experiences as LGBTI.

Based on the information available, and that the new measure will apply to all tenants who are the subject of an eviction Order or Decree, the impact of the new duty on the three elements of the public sector equality duty is neutral in regards to the sexual orientation of tenants and landlords. Strengthening consideration of the impact of the timing of an enforcement as part of the process for an eviction is aimed at supporting improved outcomes for all tenants including people of different sexual orientation.

Race

As with other groups with protected characteristics, there is no available data on the ethnicity of tenants or private landlords who are party to an application or proceedings for eviction.

Recent data from the Scottish Surveys Core Questions 2022^[46] indicate that just over half (52.3%) of adult respondents in the PRS recorded their ethnicity as ‘White: Scottish’, lower than all other tenures, and 16.5% recorded their ethnicity as White: British, and 2.5% as White: Polish. 6.8% recorded their ethnicity as White 'Other'^[47] and 15.6% recorded their ethnicity as Asian^[48], figures which are both higher than other tenures. All other ethnic groups^[49] make up 6.1% of the PRS.

In the social rented sector, the Scottish Surveys Core Questions 2022^[50] indicate that the majority (79.6%) of adult respondents in the private social rented sector recorded their ethnicity as ‘White: Scottish’, and 7.3% recorded their ethnicity as White: British, and 1.9% as White: Polish. 2.2 % recorded their ethnicity as White 'Other' and 3.2% recorded their ethnicity as Asian. All other ethnic groups make up 5.7% of the social rented sector.

A 2022 Scottish Government analytical paper^[51] drawing together evidence about cost of living found that:

“[m]inority ethnic groups are significantly more likely to live in larger households^[52], to be unpaid carers and live in private rented accommodation. Minority ethnic households are also more likely to have deeper levels of poverty^[53] and so a greater proportion of their income is likely to be spent on essentials which are subject to inflation.”

As noted in a 2020 report of the Coalition for Racial Equality and Rights^[54], within Scotland, black and minority ethnic (“BME”) groups are demographically younger than white ethnic groups. The report notes that, according to the 2011 Census, those identifying as white are most likely to be aged 45-59, whereas BME groups tend to be younger in profile (most likely to be aged 25-34 – with the exception of Caribbean or Black where it is 35-44). There is also evidence that young people in Scotland are in the PRS from a lack of other options^[55], but it is unclear how this applies to black and ethnic minority communities in Scotland.

A Scottish Government evidence review of the housing needs of minority ethnic groups^[56] sought to uncover trends in housing for minority ethnic groups. The review found that multiple trends in housing for minority ethnic groups were present across the literature including those identified above. People from minority ethnic groups were more likely to be living in relative poverty after housing costs than people from the white Scottish/British group which is still the case^[57], and some ethnic groups such as ‘African’, ‘White: Polish’ and the ‘Other ethnic’ group, were much more likely to be living in some of the most deprived areas in Scotland.

The review also notes that it remains a partial view and that gaps in the data exist, given that the available evidence on the demographic and geographic profile of the population is often dated or limited in terms of sample size, and that this restricts the insight offered by the available evidence.

Research undertaken as part of the RentBetter Project in 2020^[58] found that, of the relatively small number of non-white minority ethnic PRS tenants in Scotland sampled, just over a third found it difficult to find a place to rent, compared to one-fifth of all tenants in the sample. For non-white minority ethnic tenants, this difficulty in finding a place to rent was more commonly attributed to affordability or being on benefits than for other tenants^[59]. This research also found that found that tenants from non-white minority ethnic groups were still less likely to feel confident in challenging their landlord and dealing with disputes compared to their white counterparts.

The 2021 Scottish Government evidence review^[60] noted that some minority ethnic families may choose to live in the PRS due to fear of discrimination or lack of culturally appropriate accommodation within the social sector, however:

“[s]ome studies presented a more complex view of over-representation in the PRS, where minority ethnic families chose to rent privately for the greater flexibility and choice it offered compared to other tenures, suggesting a more positive image of the sector (Netto & Abazie 2012; Strachan & Donoghue 2009). For some participants, the sector was seen as an attractive alternative to the social rented sector in terms of greater choice of properties and more attractive neighbourhoods for families (Netto & Abazie 2012), allowing them to live nearer to places of worship and other amenities such as halal shops and cultural centres (Netto et al. 2011).”

A 2023 report by Netto et al on work carried out by researchers at the Urban Institute^[61] at Heriot Watt University in partnership with Shelter Scotland and Cemvo Scotland aimed to improve this gap in evidence. This was based on a systematic evidence review, an online survey with social landlords and interviews with a small sample of thirty minority ethnic and ten white Scottish participants on low and middle incomes from urban and rural locations with a range of ages, household compositions, tenure and employment statuses.

Findings from this report included indications that, compared to white Scottish interviewees, a different set of drivers motivated minority ethnic interviewees to seek new housing, including changes to or difficulty in securing employment, fear of and experience of racial harassment including intergenerational impacts, poor housing conditions and lack of space. The report also found that the majority (95%) of minority ethnic interviewees found their current housing unaffordable. Affordability issues led to minority ethnic interviewees living in the PRS to seek social housing. However, the 2022 Scottish Household Survey^[62] reported similar rates of difficulties in paying the mortgage or rent when comparing households where the person with the highest income was either white or minority ethnic.

There is also some evidence from Homelessness statistics that some ethnic minorities are more likely to become homeless from the PRS due to rent arrears. 2% of applicants identifying as White: Irish and 4% of Caribbean or Black compared with 1% for other ethnic groups. Where the reason given for accommodation being no longer available was ‘Other action by the landlord resulting in the termination of the tenancy’ this was highest amongst Polish (16%) or mixed or multiple ethnic groups (15%) compared with all ethnic groups combined (9%). Again it is not clear from this data, how many applications result from the granting of an eviction order or decree.

RentBetter survey research in 2020^[63] after the introduction of the Private Residential Tenancy, found that tenants from non-white minority ethnic groups were still less likely to feel confident in challenging their private landlord and dealing with disputes compared to their white counterparts. Awareness raising of tenancy rights and the changes being introduced by the Bill and how to exercise those rights will therefore be important aspects of effective implementation.

Based on the information available, and that the new measure will apply to all tenants who are the subject of an eviction Order or Decree, the impact of the new duty on the three elements of the public sector equality duty is neutral in regards to race. Strengthening consideration of the impact of the timing of an enforcement as part of the process for an eviction is aimed at supporting improved outcomes for all tenants including those from different ethnic backgrounds.

Evidence has also identified language barriers^[64] and lack of awareness of and confidence to act on rights^[65] as particular issues for minority ethnic groups. To advance equality of opportunity in the implementation of these measures any guidance on the new rights or existing legislation should use a range of appropriate, accessible and inclusive means and methods, including internet and social media by maximising understanding of changes.

Religion or belief

There is no disaggregated data on the religion or belief of tenants or private landlords who are party to an application or proceedings for eviction.

According to the Scottish Surveys Core Questions 2022^[66], the most common religious designation across all housing tenures is ‘no religion’. People who live in the PRS and social rented sector are more likely to identify as being 'Muslim' or ‘other religion’^[67] compared to those who own their homes outright and those who own their homes with a mortgage.

In the period 2018-2023, Muslim adults and adults identifying as ‘other religion’ were more likely to be in relative poverty (61% and 31% respectively) than adults overall (19%) and adults belonging to the Church of Scotland (16%), after housing costs were taken into account^[68].

Based on the information available, and that the new measure will apply to all tenants who are the subject of an eviction Order or Decree, the impact of the new duty on the three elements of the public sector equality duty is neutral in regards to race. Stakeholder engagement has highlighted concerns regarding the impact of this measure on religious organisations where a property is let to private tenants during periods where it is not required for use by a Religious or Faith Leader. The main concern is that recent legislative changes have already introduced discretion for the Tribunal in deciding whether it reasonable to grant an eviction order potentially increasing the length of time to recover a property. The measures in the Bill are seen as further increasing the length of time it takes to recover a property when it is required for a Religious or Faith Leader. This can have a negative financial impact on the organisation as well as inconvenience and disruption for the Religious or Faith Leader should the property not be recovered in time for their occupation.

We have carefully considered this issue. Our assessment is that this measure in the Bill does not infringe on the rights of landlords or tenants because of their religion or belief. A Tribunal is the correct place to balance the rights of both tenants and landlords when deciding whether an eviction is reasonable or not; and whether or not a delay to the enforcement of that eviction should be ordered or not based on all the circumstances of the case. The Tribunal cannot arrive at a decision that is incompatible with the European Convention on Human Rights of either party in determining whether a delay to the enforcement of an eviction should be ordered.

Strengthening consideration of the impact of the timing of an enforcement as part of the process for an eviction is aimed at supporting improved outcomes for all tenants including those from with different religion or belief. For example, delaying the enforcement of an eviction during a religious festival.