Unlawful eviction damages: equality impact assessment

Background

In Scotland, tenants can only be legally evicted from their homes by order of the Sheriff Court (social rented sector) or the First-tier Tribunal for Scotland (Housing and Property Chamber) (“the Tribunal”) (private rented sector). Evicting someone without obtaining such an order has been a criminal offence for more than half a century. In addition to a criminal prosecution, an unlawful eviction also leaves the landlord liable to pay civil damages to the former occupier of the property (see section 36 of the Housing (Scotland) Act 1988 (“1988 Act”).

Currently, section 37 of the 1988 Act sets out the mechanism for the valuation of damages where an unlawful eviction has occurred. This calculation requires a professional surveyor valuation of the difference between the landlord’s interest in the property with and without a sitting tenant. Feedback from stakeholders indicates that this is both expensive and can lead to a nil valuation. A briefing^[4] into unlawful evictions and available information from the Tribunal indicated that only a small number of cases have ever been taken and the current process is not considered to provide enough protection for tenants.

In response to the cost of living crisis, emergency temporary legislation^[5] was introduced which, whilst it remained in force, temporarily changed the way damages for unlawful eviction were calculated in recognition of the barriers to access the process under the 1988 Act. The provisions temporarily amended the 1988 Act to:

• replace the basis for the assessment of damages for unlawful eviction with a calculation based on a multiplication of the monthly rent;
• set the minimum and maximum level of damages that the Tribunal (and Sheriff Court in social housing cases) can award at three times and 36 times the monthly rent respectively;
• enable the Tribunal and Sheriff Court to set damages at a level lower than the minimum threshold where the circumstances of the case merit a lower award; and
• place an additional requirement on the Tribunal to inform i) the relevant local authority and police where a private landlord has been found to have unlawfully evicted a tenant; and ii) the Scottish Housing Regulator, where a social landlord is found to have unlawfully evicted a tenant. This allows relevant authorities to consider whether any further action should be taken in relation to the unlawful eviction.

We are now moving to make these temporary changes permanent.

Only a small number of applications for unlawful eviction damages have been made to the Tribunal prior to the temporary measures, but these increased while the temporary measures were in force. There were 14 applications to the Tribunal in relation to unlawful evictions in 2020-21 (Summary of Work of the Housing and Property Chamber)^[6], five applications received in 2021-22, and nine applications received by the Tribunal in 2022-23. From April–December 2023 there were nine applications^[7] received.

Further information about the background, rationale and policy intention behind the Bill as a whole and the individual measures are set out in the Policy Memorandum which accompanies the Bill. The Bill, Policy Memorandum and other accompanying documents are available from the Scottish Parliament website and are linked to from this Bill webpage^[8].