A New Deal for Tenants: consultation analysis

Executive Summary

This summary covers a number of the key findings from the analysis of responses to the Scottish Government’s consultation on the the draft rented sector strategy A New Deal for Tenants.

In total 8,346 responses were available for analysis. Organisations accounted for 172 responses, with 756 responses from individual members of the public. In addition, 7,508 respondents made a campaign-type submission.

Ensuring tenants’ voices are heard with an equalities led approach

In terms of particular barriers people with protected characteristics face in the rented sector, some respondents commented that the principal barrier is being able to afford the rent. In relation to groups that may be particularly disadvantaged by higher rental costs in the private rented sector (PRS), there was reference to women, young and single parents, and those from ethnic minorities. It was reported that disabled people not only face barriers associated with affordability and housing-related benefits, but also in relation to the accessibility of the housing stock.

Many respondents welcomed the focus on embedding tenant participation in the PRS, although some did note that the fragmented nature of the sector will bring challenges. Others did not agree that embedding meaningful tenant participation is needed or should be a focus. It was suggested that what tenants need is an effective route for remedy when things go wrong, and that the Private Residential Tenancy (PRT) regime already provides this.

A number of respondents either noted their support for tenants’ unions having a role in supporting tenants to participate in decision-making or welcomed the potential of tenants’ unions being considered and explored. It was suggested that tenants’ unions could be supported by a ‘right to unionise’.

Enhancing rights within the existing tenancy framework

Potential reforms to the current grounds for repossession under the Private Residential Tenancy

The PRT has been in place since December 2017 and, as the consultation paper notes, the Scottish Government made a commitment to review the 18 grounds for eviction after the tenancy had been in operation for five years.

Respondents were asked how well they thought the existing grounds are working. Some simply noted that they thought the current grounds work well or that the current arrangements do not need to be changed. Others suggested that the grounds, along with how they are operating, need to be reviewed.

A commonly-raised issue was around the balance between mandatory and discretionary grounds. It was noted that all grounds for evictions became discretionary during the COVID-19 pandemic and a frequently expressed view was that it is vital that all eviction grounds remain discretionary. An alternative perspective was that the mandatory status of some grounds should be reinstated, including to avoid risking lender, institutional, and private investment confidence.

Respondents were also asked if there were any additional specific grounds for ending a tenancy that should be added, and a very substantial majority – 94% of those answering the question – thought that additional grounds should be added. The most frequently suggested were: ending a perpetrator’s interest in a tenancy or joint tenancy in cases of domestic abuse; ending a tenancy to comply with a planning enforcement notice which prevents the property from being used in its current manner; and recovery of possession where the property is required to house an employee.

General comments about pre-action requirements included that a tenure-neutral approach would seem sensible. It was also suggested that tenants should be supported to maintain tenancies wherever possible and that this should be the vision guiding all measures considered.

A frequent suggestion was that pre-action requirements should be extended to all grounds for eviction.

Rented sector and gender-based violence

There was a view that supporting people involved in sex work should not be a responsibility of the private landlord or agent community, including because they will generally not have the expertise to make informed decisions. However, others noted that they were pleased to see recognition that, for PRS tenants, housing influences involvement in commercial sexual exploitation and can present barriers to women exiting from it. Reflecting comments about the complexity of the issues, there were a number of calls for partnership-driven and holistic interventions.

A number of respondents noted that they agreed with the consultation paper’s suggestion that the references in the model Scottish Secure Tenancy Agreement and Private Residential Tenancy: Model Agreement to ‘immoral purposes’ and ‘brothel keeping’ should be reviewed. Some suggested that they should be removed, with further comments including that the wording does not reflect a trauma-informed approach.

Joint tenants

Respondents were asked whether they agreed that the Private Housing (Tenancies) (Scotland) Act 2016 (the 2016 Act) should be amended to ensure that all joint tenants can terminate their interest in a private residential tenancy without the agreement of other joint tenant(s). A very substantial majority – 94% of those answering the question – thought that the 2016 Act should be amended as proposed.

Some respondents simply stated their support for the proposed changes, which were described as a sensible, practical approach that brings the PRS in line with the social sector and reinstates the position prior to the 2016 Act. The ability to terminate an interest in a joint tenancy was seen as both an issue of individual choice for all tenants, but also as an important protection for victim-survivors of domestic abuse.

An alternative view was that those who jointly sign a lease should remain jointly and severally liable for the rent, with some respondents drawing analogies to mortgage arrangements. It was noted that a landlord’s decision to let a property to a group of tenants is based on an assessment of their collective ability to afford the rent and that, if one leaves, the remaining tenants may be unable to cover the rent and other outgoings such as Council Tax.

With respect to safeguards for remaining joint tenants, respondents highlighted the importance of access to, and awareness of, housing advice and support, with early intervention seen as a key factor in preventing homelessness.

Respondents were asked if a ground should be introduced to enable private landlords to initiate eviction proceedings to end a perpetrator’s interest in a joint tenancy and transfer the tenancy to the tenant who was subject to domestic abuse. A very substantial majority – 95% of those answering the question – thought such a ground should be introduced. Enabling private landlords to initiate eviction proceedings to end a perpetrator’s interest in a joint tenancy was also seen as sensible, fair and reasonable, and as providing greater protection and security to victim-survivors of abuse.

The most frequent reasons for thinking the proposed ground should not be introduced were that this is not an appropriate matter for landlords to initiate, or that private landlords are unlikely to have appropriate experience or sufficient information and evidence to intervene in such cases.

Some respondents noted their agreement that the role of the Tribunal should be expanded to consider transfer of tenancy in relation to cases of domestic abuse and/or expressed their support for greater protection for victim-survivors of domestic abuse. However, concerns were raised with respect to the capacity of the Tribunal system.

A very substantial majority – 98% of those answering the question – thought the eviction process should be streamlined where there has been a criminal conviction relating to abuse of another person living with them in the let property (joint tenant or cohabitee) which is punishable by imprisonment in the previous 12 months.

Greater flexibility to personalise a rented home

Allowing people to keep pets

The most frequently-made point was that, to achieve ‘tenure blind’ housing outcomes and enshrine tenants’ rights to housing, private tenants should have the right to keep pets in their home. Comments often focused on the importance of pets to people’s emotional life as well as mental health.

Other respondents raised significant concerns, including that pets can and have caused problems, including some respondents reporting that they have experienced such problems as landlords. There was particular reference to damage to the property. A frequently-expressed view was that, rather than a blanket right, each situation must be assessed on its merits.

Those who supported a right to keep pets generally suggested it should be a statutory right, and there was a suggestion that it should be written into the Model Tenancy Agreement.

If ‘consent being the default position’ were to be the preferred option, there was a call for it to be supported by appropriate guidance for landlords on how to put the changes into practice. There were also suggestions relating to the types of incentives or assurances that could be offered to landlords to encourage them to rent to people with pets. These included increasing the maximum deposit that landlords are permitted to take and/or requiring tenants to take out pet damage insurance.

A very substantial majority – 94% of those answering the question – thought that the right to keep pets should also be introduced as a right in the social sector. The most frequently-made point was that the approach should be tenure-neutral.

Allow people to personalise their home by internal decoration

The most frequently-made point with respect to personalising internal decoration was that, to achieve ‘tenure blind’ housing outcomes and enshrine tenants’ rights to housing, tenants should be able to redecorate their homes. A number of those who referred to tenants having a right or entitlement to personalise their rented homes did go on to comment that landlords should be able to insist that the property is reinstated to its original condition or to a condition agreed at the initial point of let. Some also noted that, if this is not done, landlords should be entitled to claim on the tenant’s deposit to cover works required.

Other respondents raised concerns about a right to personalise being introduced. It was noted that properties need to be let in good condition for a new tenant coming in and, in general, this is done in neutral paint tones in order to appeal to as broad a market as possible. An associated concern was that the landlord has no way of enforcing a requirement to return the property to the original state when the tenant moves out. It was also noted that to do so may cost well in excess of the deposit, and in any case the deposit may be needed to cover other losses.

An overarching observation was that, if the right to personalise a privately rented home were to be introduced, a clear set of guidance and obligations would need to be created to inform and protect both tenants and landlords.

Reform to the eviction process

Winter Evictions

A substantial majority – 90% of those answering the question – thought that additional protections against the ending of tenancies during the winter period are needed. The most frequent suggestion was that no eviction order should be enforceable during the winter period. Reasons given included that winter evictions can be even more stressful and damaging to a tenant’s emotional, physical and mental health, and that local authority and other homelessness services are most stretched during the winter.

Although most respondents did support the introduction of additional protections, some questioned whether the case for them has been made. The most frequently-made point by those who did not support additional measures was that the time of year is not, and should not, be relevant, including because the Scottish climate can be challenging at any time of year.

Many of those who did not think additional protections are needed identified risks associated with their introduction or highlighted possible unintended consequences. The financial risk to landlords was the most frequently-raised concern, with further comments including that a landlord evicting a tenant for rent arrears already suffers huge financial losses due to the amount of arrears tenants owe at the point of being evicted. In terms of the PRS, it was suggested that investors will be deterred and will question the viability of their letting businesses if further obstacles are placed in the way of ending tenancies, particularly in cases of rent arrears.

There was a query as to whether any financial assistance would be offered to assist landlords. It was suggested that to expect PRS landlords to provide housing effectively free of charge during winter months to tenants who are often in significant rent arrears is wholly unreasonable unless grant funding is provided from the public purse to reimburse them.

Illegal evictions

A very substantial majority – 94% of those answering the question – agreed that the current calculation of civil damages for unlawful eviction should be reformed and simplified.

Some respondents noted that the minimum and maximum levels suggested by Legal Services Authority (a minimum of 6 times and a maximum of 36 times the monthly rent) seem reasonable or that the sum involved needs to act as a deterrent to illegal evictions.

With respect to the maximum multiplier of the rent that the Tribunal could award, alternative values ranging from one month to no limit were proposed. By some margin the most frequently suggested alternative value was six times the monthly rental, followed by 12 times.

It was also suggested that in addition to monetary compensation for tenants there could be other penalties, including that a landlord should be stripped of their licence or disbarred from being a landlord or a letting agent.

The importance of raising tenants’ awareness of their rights in relation to illegal evictions was highlighted, with suggestions that this could be done via the tenancy agreement or could involve a media/social media campaign.

Supporting Students

With respect to whether students living in Purpose Built Student Accommodation (PBSA) should be offered similar rights to students who rent from a private landlord, a substantial majority of respondents – 96% of those who answered the question – thought they should. In particular, it was argued that students living in PBSA should be able to give 28 days’ notice to end their tenancy. It was also argued that students who wish to stay in PBSA throughout the summer should have the right to do so.

Other respondents were clear that PBSA is a different type of accommodation, more like extended serviced accommodation or short term let provision. The different letting cycle and the scale of investment needed were both highlighted. It was argued that allowing students in PBSA the right to terminate a lease at 28 days’ notice would have a serious impact on the supply of student accommodation.

In terms of particular aspects of the PRT that are not working for the student market, many respondents focused on the absence of a fixed term contract and the ability of a tenant to give 28 days’ notice of their intention to leave. It was argued that this combination of an open-ended tenancy and short notice periods do not work well for the student market and the academic year and that landlords are leaving the student market.

Respondents also identified a number of other concerns regarding high rental costs. It was suggested both that rent controls could help to address this issue but also that the introduction of further regulations, including rent controls, may cause more landlords to exit the student market. Poor accommodation quality, difficulties in getting repairs carried out, poor energy efficiency standards and high energy bills were also cited with respect to student tenancies.

Rent Guarantor Scheme

General observations included that an effective guarantor scheme should alleviate risks for landlords or should encourage landlords to rent to more vulnerable, or higher risk, tenants. However, there were also views that widespread use of rent guarantor schemes could exclude people from disadvantaged backgrounds from accessing the PRS or that it would be better for households that are likely to be required to provide a guarantor to be housed in the social sector.

From the perspective of the tenant, the most frequently-identified features of a scheme were that access should be universal, the application process should be quick, easy and tenant-friendly and it should be free to use.

The need to raise awareness that schemes exist, or to promote schemes to landlords, letting agents, students and other tenants was also highlighted.

Gypsy/Traveller Communities

Some respondents saw a need for improvement in the volume and quality of accommodation for Gypsy/Travellers, noting a shortage of site accommodation across many parts of Scotland, and citing quality and condition issues for existing sites. It was argued that the responsibility to provide Gypsy/Traveller site accommodation should be equal to the responsibility to provide housing for settled populations.

Respondents also cited evidence of very significant inequality of outcomes between Gypsy/Travellers and the general population, including specific reference to physical and mental health, education, employment, homelessness and experience of discrimination.

For some respondents, standardising pitch agreements and aligning them with social tenancies, was seen as a means of ensuring equality of security and protections for Gypsy/Traveller site residents.

Agricultural/Crofting/Tied Worker Tenancies

Lack of security of tenure was confirmed as a key issue particularly, but not exclusively, in relation to tied tenancies. This was sometimes connected to the absence of a residential type of Tenancy Agreement. Respondents highlighted that concerns about potential consequences for both accommodation and employment mean tenants are likely to worry about raising quality issues.

There were a number of references to the importance of tenant farmers, crofters or employees living on site in order to either run a business or perform their role. There was a concern that any restriction on the landlord or employer regaining possession of the property at the end of the farm tenancy, or period of employment, will have severe implications for incoming workers and tenant farmers.

Many comments focused on the importance of the early provision of advice and support. The other main theme raised related to priority for social housing. There was broad agreement that those facing the loss of tied accommodation should have priority for social housing, and it was noted that this is a particular issue in remote, rural and island communities.

Affordable Rents

A shared understanding of housing affordability

Many respondents highlighted the importance of affordable rents in enabling people to access housing, citing evidence of the scale of affordability pressures for social and private renters in particular. This included a view that the scale of the challenge is such that PRS policy and rent controls need to be part of a wider approach to improve affordability. There were also calls for a rights-based approach to affordability, to support a person’s right to an adequate home.

There were a number of comments that, while there is no single agreed measure of affordability, most existing measures are based on housing cost-to-income ratios, or residual incomes. Affordability measures based on residual income – whether a household’s residual income after living expenses is enough to meet their housing costs – were the most commonly supported. Specific rent affordability considerations suggested by respondents included ensuring that affordability measures are based on ‘total’ housing costs and consider property type, size, energy efficiency, quality and location.

A shared understanding of affordability was seen as essential in identifying how rent increases and associated affordability pressures are impacting households and informing the wider policy approach to reducing poverty. In terms of practical applications, the most common suggestion was that a shared understanding of affordability should be used to underpin some form of rent benchmarking or control measures to ensure that rents are genuinely affordable.

Respondents also suggested a role for a shared understanding of affordability across other aspects of housing policy, including in relation to housing market interventions and affordable housing supply.

Consideration of appropriate forms of rent controls

The consultation paper notes that, despite all private tenants with a PRT having the right to challenge unfair rent increases, very few people have requested a rent adjudication. Many respondents supported proposals to remove the potential for the adjudication process to lead to a larger rent increase than that proposed by the landlord. Some respondents noted that current rules mean that those requesting adjudication risk being penalised for using provisions intended to increase protections for private tenants. It was argued that rebalancing of the adjudication process is required with a greater focus on protecting tenants, while ensuring clear evidence-based outcomes.

Other respondents disagreed with the proposals, and some questioned the robustness of evidence on the reasons for tenants choosing not to use adjudication procedures. It was argued that the proposed changes would result in adjudication being unfairly balanced against the landlord, and that current rules should remain unchanged to ensure fairness to landlords and to prevent ‘speculative’ rent appeals. There was a view that some form of counterbalance is required to prevent tenants choosing to appeal all rent increases, with some respondents of the view that the proposed changes risk a significant increase in ‘frivolous’ appeals.

Rent setting in the social rented sector

Given the range of safeguards already in place to protect social rented sector tenants, it is proposed that national rent controls should only apply to the PRS. A very substantial majority of respondents – 96% of those answering the question – disagreed with the proposal. Among respondents who disagreed were some who were opposed to any form of rent controls but who suggested that, if any such controls are to be introduced, then they should apply across both social and private rented housing.

Reasons for thinking rent controls should also be extended to social rented housing included that, as set out in the consultation paper, social rents have risen at twice the rate of rents in the PRS. Some respondents saw a need for a more effective mechanism to ensure social rents are affordable and questioned why a consistent approach to ensuring affordability of rents would not apply across both sectors.

However, it was also suggested that a single system of rent controls may not be appropriate given the differences between social and private rented housing. Some respondents referred to differences in how the sectors function, for example noting that social housing is more heavily regulated and therefore more homogenous in terms of housing quality, and that social landlords receive public subsidy and operate on a not-for-profit basis.

Vision and principles of future rent controls

Many responses were informed by opposition to any form of rent controls, raising concerns that rent controls have the potential to result in unintended consequences that could reduce supply.

There was also a view that, while the proposals are welcome, rent controls alone cannot solve the inadequate supply of affordable homes and that increasing the supply of social housing is the most important change needed to support the right to adequate housing.

It was argued that the overall vision for the sector should be reflected in any future rent control system, including detail on how rent controls will balance protection for tenants with the risk of encouraging disinvestment by existing landlords. There was some concern that the vision and principles set out in the consultation paper do not consider the potential impact and risks associated with rent controls for the PRS.

The need to ensure that policy design anticipates potential adverse impacts, incorporates appropriate enforcement, and can respond to local variation in market pressures was highlighted.

Supply of Rented Homes

Affordable Housing Supply Programme

Most of those commenting agreed that acquisition of existing properties should be part of the approach to meeting housing need across Scotland. A range of possible benefits was identified, including the potential to rapidly increase available social rented housing and to target acquisition to address specific unmet housing needs, such as accessible homes or properties for larger families.

The need for a strategic approach and due diligence was also highlighted. In terms of due diligence, the importance of ensuring that that acquisition of existing properties does not leave social landlords owning properties that are not fit-for-purpose and/or are not suitable for local housing need was highlighted.

Other comments were primarily concerned with the overall volume of affordable housing supply. It was suggested that landlords’ focus should be on delivering against housing supply requirements identified by Local Development Plans and Strategic Housing Investment Plans. This included a view that an appropriate balance between new development and existing properties must be set at a local level.

There were a number of concerns about the scale and scope of the investment required to deliver the affordable housing needed. Some respondents were of the view that limited funding support and increasing construction costs mean that targets for new affordable housing cannot be met without unaffordable rent increases. In this context, there were calls for increased Scottish Government investment.

Social Rented Sector Allocations

Those who commented were most likely to believe that the current approach is not achieving the right balance between supporting existing social tenants and those who are seeking a home within the social sector. Reflecting some of the themes covered at the previous questions, there was a view that the crux of the issue is a lack of supply, and quite simply that there are not enough socially rented homes to meet demand.

Comments made by those who thought that the right balance is generally being achieved included that allocation policies are underpinned by a clear legal framework, subject to regular review and informed by consultation with stakeholders. It was also suggested that the current allocations framework works well in ensuring those assessed with the greatest housing need are prioritised. However, it was recognised that, particularly within a pressured housing system, allocations based on housing need mean that, generally, only those that are vulnerable either through homelessness, serious health-related conditions or extreme need will be offered social housing.

A number of respondents commented on the importance of having a clear understanding of the barriers people with protected characteristics face in trying to access social housing. In terms of how this understanding could or should be achieved, comments included that improved data collection is needed to accurately analyse and predict housing need, determine supply and assess the impact on different groups.

Quality – Raising Standards

Existing Housing Standards

In relation to ensuring that landlords undertake essential repairs in a timely fashion, some expressed a view that issues are more significant in the PRS, and that while there can be problems in social housing, standards and performance are generally expected to be better.

A frequently-raised issue concerned how landlords can be held accountable by tenants when they fail to meet the Repairing Standard, particularly in relation to essential repairs. Although some respondents had concerns, others were of the view that current legislation and regulations are sufficient to ensure appropriate standards of repair in the PRS, and that the vast majority of landlords do undertake both essential and non-essential repairs in a timely fashion.

Many referred to the importance of clear standards, and of greater parity in the standards that apply across the rented sector. There was a call for further guidance to set out clearly what a Repairing Standard for the PRS would mean in practice, both for tenants and landlords.

However, some concerns were raised around the application of a single standard across Scotland, for example, in relation to varying availability of contractors and materials, with particular difficulties in rural areas.

Many respondents thought that better enforcement of current standards, and effective enforcement of any future approach, will be key to driving improvement. In terms of key features of an effective enforcement regime, there was reference to clearer and easier recourse for tenants where repairs are not delivered to standard and to landlords being more accountable for addressing issues around undelivered repairs.

There was also support for the use of penalties where landlords fail to provide an adequate response to outstanding repair issues. However, it was also suggested that legislation and/or regulation may be required and that local authorities would need to be resourced if they are expected to be responsible for taking enforcement action.

A new housing standard for Scotland

A number of respondents commented on the general principle of a tenure-neutral Housing Standard and considered how it could or should align with other strategy and policy. Although some welcomed the commitment to consult on the principles underlying a proposed new Housing Standard, it was also suggested that it is difficult to comment on the barriers and required support without further detail.

Respondents also commented on how a Housing Standard would align with other policies and strategies. It was noted that, historically, social housing has been held to higher standards than other tenures and that there is already a complex set of existing legislation that governs standards and services. In terms of alignment, there was reference to the existing Energy Efficiency Standard for Social Housing and the Heat in Buildings and Fuel Poverty Strategies.

In terms of delivery, it was thought that achieving lasting change across the rented sector will require tax, regulatory and other policy reforms and that the exact nature of these will depend on the Scottish Government’s ambition, on how the scope for alignment across the whole rented sector is defined and on developing a collective understanding on the case for alignment of standards and services.

In terms of the breadth of the proposed Housing Standard, one understanding was that it will relate solely to physical property standards, but that it would be good to know whether it will cover energy efficiency and zero emissions heating alone or whether it would be broader – for example covering relet standards, space standards and other design issues. Another perspective was that there could be opportunities for alignment of tenants’ rights, customer service, affordability and regulation.

However, it was also suggested that standards across the tenures will never really be comparable without a uniform system of regulation across all housing tenures, and that this will not be possible.

A vision for cross-rented sector regulation

The consultation paper sets out the Scottish Government’s vision that regulation should seek tenure neutral outcomes for tenants in both sectors, empowering tenants through routes to redress failures and supporting good standards across the rented sector.

Comments in support of this vision included agreement with the focus on tenure-neutral outcomes for tenants in both sectors, and with ensuring the right to adequate housing applies across all tenures. A PRS regulator was also seen as having a key role to play in empowering tenants, with a call for more effective enforcement of standards in the sector. While some felt that existing legislation provides private tenants with relatively strong rights, others saw a need for better mechanisms to ensure that private tenants can assert their rights, and access redress where their rights are not upheld. Reference was also made to potential for a regulator to improve awareness of rights among private tenants.

However, others felt that the vision and principles are too heavily weighted in favour of tenants; they wanted to ensure that any regulator balances support for tenants’ rights with the rights of landlords and the need to achieve a high quality PRS.

Concerns were also raised that the PRS regulator may become another layer of administration that unduly increases the regulatory burden on landlords, or that adds to confusion around accountability for tenants. It was argued that a proportionate approach to regulation should not disadvantage the majority of landlords and tenants in order to address the shortcomings of a minority.

With respect to the role of a PRS regulator, there were views that this will ensure a more consistent approach to administration and enforcement. It was suggested that the efficacy of a regulator will depend on the structure, scope and powers of the role, and there was a view that it is not possible to reach any conclusion about the vision and principles without these details.